Pakistan: Challenges and Prospects

This paper proposes to offer specific examples of some multicultural challenges to family law of an on-going nature by focusing on (i) the Ahmadiyya communities to whom Muslim family law is no longer formally considered applicable since they were declared non-Muslim in 1974, and (ii) transgender communities known variously as hijra, khusra or khwajasara, whose claims for civil and political rights as well as application of family laws to them have in recent years met with some success. Using legislation (or lack thereof) and case law from Pakistani courts, this report will highlight the erratic and ad-hoc manner in which claims are made and responded to by courts and state institutions. It will advance the argument that Muslim family law in Pakistan is of a porous, amoebic nature, plural, diverse and often inconsistent in its responses. Finding answers to challenging questions such as what family law governs the Ahmadiyya communities and on what basis, or how, to calculate inheritance rights of transgender persons falls almost invariably to the judiciary, who then direct the government to legislate accordingly (A third example relates to Hindu and Christian communities where federal and provincial legislatures have recently passed laws, including the Sindh Hindu Marriage Act 2016 and the Hindu Marriage Act 2017. Due to constraints of space, this example will not be dealt with in any detail, but it is flagged up here as an example of how the state and her institutions respond to family law matters of religious minorities.). The report concludes through these selected examples that Pakistan’s family law is a complex multi-layered phenomenon: clear at times, opaque at others. Whilst the Pakistan judiciary has taken upon itself the interpretation and application of Muslim family law, it is treading cautiously and stops short of offering solutions on sensitive and potentially explosive issues such as application of Muslim family law to the Ahmadiyya communities, leaving significant numbers of Pakistanis in ‘limping’ situations (Tanveer, Ahmadi, Christian marriages not being registered, 2016). On the other hand, in the case of transgender communities and their access to rights and entitlements in family law, Pakistani courts have demonstrated a robust and courageous approach, moving well beyond conventional positions on the subject. The concluding reflections will also highlight some implications for private international law.