quaid-e-azam law college lahore
Muslim family laws ordinance 1961
Essentials of Ordinance
Prof. Amna Bakhtiar Malik

OBJECT:
The MLFO 1961, which was enacted on the recommendation of the commission on marriage & family laws, giving rise to countrywide controversy, there can’t be any doubt that the underlying object in making this provision is to furnish a simpler, cheaper & more expedient remedy to female population.

HISTORICAL BACKGROUNG:
The all Pakistan women’s association, a body which claimed to represented the women point of view was in the forefront in claiming legislation to protect their rights & had in fact started litigation,
“To resolve the issue, the then Govt, Constituted a commission to consider the various aspects of the demands & make recommendations in relation to the family system” PLD 2000 FSC 1
the MFLO 1961, was enforced with effect from the 15th July 1961,(establishment of separate family courts) in furtherance of the enforcement of ordinance 1961, west Pakistan family courts Act 1964, establishing separate family courts w.e from 18th July 1964.
Aim: Expeditious settlements & disposal of disputed relating to marriage & family affairs & for meters connected therewith
Injunction of Islam to prevail: “in case of clash b/w existing law & the injunction on Islam with regard to the validity of marriage , injunction of Islam shall prevail for the purpose of MFLO 1961”
1999 PCrLJ 1655
3. SALIENT FEATURES:
a. Succession/inheritance S. 4
b. Registration of marriage S.5
c. Polygamy S.6
d. Talaq S.7
e. Dissolution of marriage otherwise than by talaq S.8
f. Maintenance S.9
g. Dower S.10

EXPLANATION:
c. Succession:
i. Interpretation of the term
Succession:
“An act or right of legally or officially faking over a predecessor’s office, rank & duties”
Inheritance:
“property received from an ancestor under the law of intestacy”
ii. Relevant Provision
S. 4 MFLO 1961
iii. Essentials of S.4
1. Death of any son or daughter
2. before the opeing of succession
3. the children of such predeceased child, if any
4. living with time the succession opens,
5. shall (mandatory) per stripes (shares according to the stocks & roots of family as against per capita which meant share per head)
6. receive a share
7. equal to the share which such son or daughter would have received
8. If alive
9. duty of court: “court in the cases which involves inheritance inter se among legal heirs should make efforts to ensure that no legal heir is denied his legal share in the estate of deceased on a technical grounds” (2004 YLR 340)
iv. Scope
Sec 4 has been enacted to cater the needs of orphan grand children to remove their sufferings but it can’t be in no way interpreted so as to decrease the shared of other descendent
Application of S. 2 W.P Muslim personal law(shariat) application act 1962 & bothe the statures can stand together
PLD 1990 S.C 1051
Extent of share to be receive children of the predeceased
This section allows inheritance to children of predeceased son or daughter the extent that the son on daughter could have of federal Shari at court’s judgment cited as the judgment of the SC reported as PLD 2000 FSC 1 , is pending decision by the SC of Pakistan & in the light of proviso to clause(2) of Article 203-D of the constitution of Pakistan, 1973 is not to take effect before disposal of appeal preferred to SC against the decision. As such provisions of S.4 remain operator until appeal is disposed of by the honorable SC.
(200 SCLC 1240, PLD 2003 S.C 475)
b. Registration of Marriage
Marriage has been defined as a civil contract which has for its object, the procreation & the legalizing of children
Registration under Islamic Law: for the validity of marriage under Islamic law its registration is not necessary
As held in Arif Husain V state [PLD 1982 FSC 42] non registration of nikah under MFLO 1961, the nikah of an adult girl is not invalid in the absence of any permission from the wali.
Effect of Registration: is not necessarily the proof of nikah, as in Muslim law nikah can be performed by offer & acceptance presence of witnesses.

I. Essentials of Sec.5
· Application of Ordinance:
Provision of this ordinance is applicable only when a marriage has been solemnized according to Muslim rituals

Nikah Registrar:
The union council shall grant license one or more persons who are called, nikah registrar under Muslim Personal law Ordinance 1961, is a public servant within the meaning of S.2 [PLD 1969 SC 435]
Remuneration:
Fees to be received from the parties
Functions of Nikah Registrar:
There are given licence for the registration of marriage held under Muslim law
No of Nikah Registrars:
There shall be only one nikah registrar for ward
V. Report to Nikah Registrar:
S 5(3) envisages that if nikah has been solemnized by a person other than the nikah registrar, that person is under obligation to inform the nikah registrar of the ward where the parties to the marriage are resident
Maintenance of Record:
It is the duty of nikah registrar to maintain the record Govt shall prescribe rule for the procedure of maintenance of such record, which is as follows
Form of nikah nama
fees of registration
registrar of nikah
Union council preserves all the records & manner in which marriage shall be registered
Supply of copies of nikahnama, on paying fee copy of nikahnama shall be supplied to the parties
Inspection of Record:
S. 5(6) enumerates that any person (other than parties) may offer paying a pay prescribed fee

inspect the record preserved under subsection 5
at the office of the union council
may obtain a copy of such entry in the nikah registrar Direction of Union Council
Penalty for Non Registration:
Non Registration of nikah is supporting circumstance that the marriage has not been solemnized sit is non registration would only attract penalty under section 5(4)
[PLD 2000 FSC 63]
§ Imprisonment: Up to 3 month ,or
§ Fine: extend up to Rs. 1000/=
§ Both
Penal Liability:
Person other than the nikah registrar if he fails to report the same with the concerned nikah registrar of the relevant union council
Effect of Non Registration:
Non registration of nikah although a serious irregularity but same would not derogate from the validity of nikah family court while entertaining the suit of non registered marriage, was the report the matter to the relevant union council. [2006 YLR 349]
Mandatory Provision:
S. 5 has mandatory nature
c. Polygamy:
“Marry women of your choice two or three or four but if you fear that you shall not be able to deal justly (with them) than marry only one”
(Sura Nisa- verse 3)
Scope of sec 6:
It stipulates that no man can contract a second marriage during the subsistence of existing marriage except with the previous permission in writing of the Arbitration council.
Existing Marriage:
This expression covers the marriage of a Pakistan Muslim Male with Muslim non citizen or even a non Muslim lady
Previous Permission
Non Registration of Subsequent Marriage
Application for Permission to the Chairman
i. Application written form
ii. Prescribed fee (Rs.100)
iii. Reasons for the proposed marriage
iv. Consent of the exist of wife (s)
v. Signature of Application etc.
Procedure On Receipt of Application Sec 6(3)
vi. Constitution of Arbitration Council S. 2(a)(b)
vii. Satisfaction of the Arbitration Council
The Arbitration Council may without prejudice to its general powers to grant permission for subsequent marriage has to consider the following grounds of West Pakistan Rules
a. Sterility
b. Physical infirmity
c. Physical unfitness for the conjugal relation
d. Willful avoidance of a decree for restitution of conjugal rights
e. Mental infirmity etc. (Rule 14)
f. Grant of permission
The Ac shall record its reasons for granting such permission there
Revision Against the Order:
Any party feeling aggrieved of the above said order may be entitled to file a revision application within prescribed time period
Payment of prescribed fee
Revision Application has to be made to the collector concerned
Finality of the Order of Collector
Order passed by the Collector on that revision petition shall stand final
It won’t be called in question in any court
Effect of contracting subsequent marriage without permission: S. 6(5)
a. Payment of Dower
i. Entire amount of dower
ii. Whether prompt or deferred
iii. To the existing wife (s)
iv. If not a paid
v. Shall be recoverable as arrears of land revenue
b. Punishment Upon Conviction:
i. Punishment up to 1 year, or
ii. Fine up to 5000 or
iii. Both
Bar On Polygamy
S.6 has not expressly declared the subsequent marriage illegal & has merely prescribed a procedure to be followed for the subsequent marriage & punishment for its non observance
Object of S. 6
Spirit of S.6 is reformative only as in fact same is prescribed a corrective measure for measure of injustice to the existing wife
[PLD 2000 FSC 1]
Section 27 Contract Act 1872
d. TALAQ:
Requirements for S. 7(1)
i. Pronouncement of talaq in according with Muslim Law
ii. Service of Notice on the chairman
iii. Service of copy of the notice on the wife
Penalty S. 7(2)
If any person contravenes the provisions of S.7 (1) shall be punishable as
Up to 1 year of simple imprisonment or
Up to rupees 5000/=
Both
Talaq to be Effective S. 7(3)
§ Talaq unless revoked earlier
§ It shall not be effective
§ Until expiration of 90 days
§ From the day on which notice is delivered to the chairmen
Constitution of Arbitration Council:
§ Within 30 days of the receipt of notice to the chairmen
Purpose of Arbitration Council:
§ Reconciliation between the parties
§ Arbitration shall take all steps necessary to bring about such reconciliation
Service of Notice under section 7(1) delivered to the chairmen
Effectiveness Talaq incase of pregnancy: if the pregnancy lasts later than the 90 days from the date of its remarrying the same husband
o S.7(6): it does not debar a wife whose marriage has been termination by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective,
1. [PLD 1963 SC 51]
Three Steps to pronounce Talaq:
Verbal pronouncement:
It has to be verbal pronouncement as mandated by sharia
Form of pronouncement :
Talaq may be pronounced in any form whatsoever, which would mean that in any prevailed made i.e. one own language or in Arabic as same sects prescribe in his behalf
Notice to Chairman:
Verbal pronouncement of Talaq has to be reduced into writing has to be conveyed to the chairman alter with a copy to the wife
Failure to compile with the Provision of S. 7:
Failure to strictly comply with said procedure would not invalidate talaq necessary requirement or ingredient of talaq is a conscious & willful pronouncement of talaq with intention to release wife from marriage land
[2004 YLR 619]

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" punish me but DON'T forgive me"