Developments in Muslim Law : The South Asian context*
by Werner Menski
Cite as : (2000) 3 SCC (Jour) 9
When Professor Fyzee died in 1982, many of the legal developments I am going to talk about today were not yet evident. Therefore, I am building here, to some extent, on the existing work and thoughts of older scholars like Professor Fyzee, but we are now able to construct and produce new scholarship in Muslim law, in reaction to recent developments regarding Muslim personal laws which contain many lessons not only for family lawyers, but for comparative legal scholarship as well. There are many new phenomena and legal issues, and it has been a challenge in itself to select a sample for today's lecture because, inevitably, many important issues and topics would have to be left out. Forgive me, therefore, if I do not touch on so many topics that are undoubtedly important but which cannot be covered in a lecture of this kind.
So let us initially cast the net quite wide, covering the South Asian Muslim laws of India, Pakistan and Bangladesh, as well as the emerging phenomenon of Muslim law in the United Kingdom today, for which I have coined the term angrezi shariat1 . Taking in our stride such a wide regional ambit, I shall then restrict our focus today largely, but not exclusively, to Muslim divorce law, specifically to the talaq, and especially the much-discussed problem of the triple talaq.
I shall argue that the interaction of shariat law as Muslim personal law with the official law of any particular state inevitably creates tensions which statutory law reforms in our modern world cannot overcome unless they recognise the presence of 'the other', the Muslim personal law, as a legal ingredient that cannot just be legislated away. People, but more so governments and scholars, have had to learn to live with legal pluralism, also when it comes to Muslim law, and cannot hope to operate a model of legal regulation in which the Austinian state's law alone can dictate how Muslims anywhere in the world are to lead their lives.
This conflict scenario even arises when a particular Islamic state, such as Pakistan in our sample, seeks to codify shariat law and turns it into official law. The result, as Pakistani law strongly confirms, is a new form of legal pluralism involving different types of Muslim laws, which still conflict. In such situations of legal pluralism, therefore, whatever a modern state tries to do, by way of legal reform or policy, creates its own peculiar problems. Whether the modern state Islamises itself, and potentially the entire legal system, as in Pakistan, or accepts Muslim law as a personal law on its own terms, as in India, or whether the state tries to ignore Muslim law, as we see in the United Kingdom today, the result is the same in principle: Whatever strategy a state adopts, Muslims as a community and as individuals will always develop new forms of what I shall call 'living Muslim law', particular forms of shariat that are unique in terms of space and time. These traditionally extra-legal forms of shariat constitute in themselves what we as comparatists today call hybrid legal systems. Within these multiple hybridities of Muslim laws, the only rock-solid foundation is the Holy Qur'an itself, and, one should hasten to add, the Prophet's sunna as found in the hadith, subject to testing of the chains of transmission, the isnad.
If we take the concepts of ijtihad and ikhtilaf, both emphasising diversity of interpretations and plurality of understandings of the Divine Order, as seriously as they must be taken, everything else in Muslim jurisprudence is the product of human interpretation within recognised margins of error. If it had been otherwise, Muslim jurisprudence and law would historically have developed in a very different way, and there would have been a living supreme human authority of interpretation for all Muslims, such as is claimed to exist in the person of the Pope for Catholic Christians.
When state laws become involved in this scenario, the official law always takes sides in ancient struggles over jurisprudential details, but it never succeeds, in simply overriding the traditional Muslim law as a whole. Modern Western-style state law, which tends to be built on positivist Austinian principles, cannot, at the end of the day, abrogate Islamic law, because the latter is a different legal category, namely a religious commitment as well as a way of life, rather than simply a legal system. Islam, after all, means "total and unqualified submission to the will of Allah"2 and from this perspective all positivist claims of modern state law can be defeated.
If we focus on the talaq, our key element of comparative analysis in the present investigation, we see at once that modern Western scholarship treats this institution as inherently violative of fundamental human rights. This is mainly because it allows a Muslim husband unlimited discretion to divorce his wife instantly, as he pleases, and without having to give any grounds, while the Muslim wife is deemed to have no such right. The triple talaq, in particular, has been built up by scholarship as the embodiment of all that is bad in patriarchal Muslim societies and traditional legal systems that tend to treat women as chattels. Muslim man's right to divorce by talaq is seen as an improvement on the corrupted pre-Islamic position in which men simply followed their whim and patriarchal caprice. We know from a hadith that divorce was disliked by the Prophet who said that it was, "with Allah, the most detestable of all things permitted".3
The various forms of divorce by the man are grouped under talaq as-sunna, comprising the talaq al-ahsan and the talaq al-hasan. Beyond that, the so-called triple talaq the talaq al-bidah, is clearly an innovation and is treated as less than ideal, because it does not allow reconsideration, and evidently bad for women. Not surprisingly, the triple talaq has found favour with men, especially in South Asia, and there has been widespread abuse of this male discretion to divorce. The instant effects of the triple talaq leave Muslim wives totally powerless and, in the harsh social realities of South Asian life, husbands may not even honour their obligations in terms of paying maintenance during the iddat period and paying dower (mahr).
This particular form of divorce clashes head-on with human rights-focused concepts of modernity, especially because of its gender bias. Yet at the same time, the talaq is very modern as well, in that it allows freedom of choice to the individual. The difficulty is, of course, that the talaq gives men unilateral power over women and children, and such powers and discretion may be abused too easily, thus creating a definite gender imbalance which a modern state may wish to reduce.
The British faced such problems of inequality and of blatant abuse of patriarchal powers in the name of religion when they were in charge of law-making in South Asia. Significantly, they chose not to get involved in legal regulation of the talaq. Instead, they focused on assisting Muslim wives to obtain a divorce through court proceedings, given that the dominant view in the Hanafi jurisprudence of South Asia was that Muslim wives had no right to demand a divorce against the will of the husband at all. The result, the Dissolution of Muslim Marriages Act of 1939, which still applies in all three major South Asian countries today, has been a significant improvement in the legal position of Muslim wives. Using the concept of takhayyur (selection), the colonial legislators reformed the Muslim divorce law for South Asian women to the effect that they were now given a fairly large number of grounds for divorce. But what has been the effect of that legislation?
In India, the view prevails that Muslim wives in effect still have no right to divorce against the will of the husband, despite the 1939 Act. I think this view needs to be questioned and challenged for several hard legal reasons. The strongly conservative position on this matter in India is evidently fed by a defensive Muslim population, in conjunction with a scholarly community that seeks to demonstrate for much of the time how 'backward' and out of line with the rest of the legal system the Indian Muslim law has remained.
Such analyses are politically motivated and legally questionable. Firstly, it is evident that there was never an agreement on this important question between the various schools4 and much of the writing on divorce produced by female Muslim scholars continues to emphasise the right of the Muslim wife to divorce. Secondly, the case law under the Dissolution of Muslim Marriages Act, 1939 from Pakistan and Bangladesh clearly shows that Muslim wives in those countries, most prominently in Pakistan, have the right to divorce the husband at any time, provided they dare to stand up in court saying that they cannot live any longer with their husband 'within the bounds of Allah'. The leading case on this remains the famous case of Khurshid Bibi5 . In fact, thousands of recent cases in Pakistan have been dealt with under Section 8 of the Muslim Family Laws Ordinance of 1961, which has the same effect as the 1939 Act. So in Pakistan, most evidently, there is today an 'equality of misery' when it comes to divorce, since either spouse can terminate the marriage as and when s/he pleases and the other party has no scope for opposing this unilateral action.
Because the talaq clearly favours men, many Islamic countries have tried to control the man's discretion to divorce at any time. In Pakistan, the Muslim Family Laws Ordinance of 1961 (MFLO) effected a modicum of state control in the sphere of family law by seeking to regulate marriage, polygamy, divorce, and some aspects of inheritance. However, it is significant that the statute first of all preserves the Muslim husband's traditional right to divorce in any form for Section 7(1) lays down that
"[a]ny man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife".
This provision instead of solving problems leaves out a question: What would be the legal position of the wife if the husband divorced her by talaq but never gave notice to anyone?
Section 7(3) of the 1961 Ordinance lays down that any talaq given by the husband will be effective only 90 days after notice of the divorce was given. This again raises another question: What if the husband never gave formal notice of the divorce to anyone in the first place? The answers to both these questions would be in consonance with the classical shariat law, according to which a triple talaq would be instantly effective. Here was thus a real conflict of laws which needed to be resolved.
On this particular issue, Pakistani law has developed an immensely complex jurisprudence which arose after the time in which Professor Fyzee wrote his major books on Muslim law. The original position was deceptively simple and persuasive. In the famous case of Ali Nawaz Gardezi6 , a dashing military man had stolen the heart of the attractive wife of a businessman and had purported to marry her a few days after an alleged divorce from the first husband. This became a high society scandal, and the Pakistani Supreme Court, to which the case was rapidly transferred because of the importance of the people involved, was under intense pressure to come up with a morally correct verdict. The Court held that notice of divorce was essential to dissolve a Muslim marriage in Pakistan. In other words, in the absence of notice there was no divorce and the marriage was valid.
This case was treated as a precedent despite its peculiar facts (the parties were Shias, the wife a foreign national, and the second marriage took place within the iddat) and it was also followed in English law as representing the true state of Pakistani law on the matter, with far-reaching consequences.
But then, very soon, cases began to appear in Pakistani courts from which it became obvious that notice of divorce could not possibly be essential for legal validity in all circumstances. The decision in Noor Khan7 signifies this. In this case a woman and her second husband stood accused of zina on the basis that the woman's first marriage had never been validly dissolved. The background to this case was that the husband, in a fit of anger, had thrown his wife, mother of many children, out of the house when she told him that a male relative had attempted to assault her sexually. After some time, the woman had been remarried to a man with whom she now had another set of children. When Pakistan Islamised itself and introduced the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the same male relative who had attempted the sexual assault filed a case under the 1979 Ordinance against the woman and her second husband. This prosecution was entirely mala fide, and the Federal Shariat Court had little difficulty looking through the concocted pleadings. It was held that, in circumstances where the parties concerned did not even know of the existence of the MFLO, let alone any formal requirement to notify a divorce to some authority, it could not be held by the courts that notice was essential. There are quite a few other reported cases of this kind. Significantly, a whole group of cases on this subject shows that when the protection of women's and children's rights to inheritance or other financial benefits were at stake, the courts safeguarded such rights by holding that a divorce could be legally valid in Pakistan also in the absence of formal notice of the talaq. These were cases of social realism rather than Islamic zeal of some description.
Then, during the period of pronounced Islamisation, new cases appeared from 1988 onwards which held that notice of divorce was not essential to bringing about legal validity in Pakistani law, simply because such notice requirements were against the letter and spirit of Islam. These convoluted cases8 were the result of further Islamisation of Pakistani laws and focused as much on complex questions of constitutional law as on the issue of divorce. In essence, an important constitutional amendment in 1985 turned the Preamble of the Constitution of Pakistan into a substantive provision of the Constitution, so that under the new Article 2-A every law in the country had to be tested as to whether it was in line with Qur'an and sunna.
In these circumstances it was held that the requirement to give formal notice was un-Islamic, and attempts were made to have Section 7 of the MFLO as a whole declared unconstitutional and taken off the statute book.
Thus the Pakistani law has maintained an uneasy compromise between the uncodified shariat law and the codified Muslim law of the MFLO. During the early 1990s, the Supreme Court took cognizance of the two contradictory lines of cases on the question of notice of divorce though it did not venture to resolve the conflict. The decision in Kaneez Fatima9 , however represents its skilful balancing resorted to by the court in holding that normally notice should be given in accordance with Section 7 MFLO, which remains good law. Subsequent decisions held that it would depend on the facts and circumstances of the case whether a particular Muslim divorce was legally valid or not. This means, that the little word 'shall' in Section 7 of the MFLO (as cited above) and elsewhere is, in Pakistani law, being interpreted to mean that a Muslim man 'should please' give notice, rather than that he 'must' do so, as would be the effect of Western-style legal interpretation. While one could characterise this as a typically South Asian way of reading statutes and implementing (or not implementing, as it were) their letter, what is interesting is the fact that Pakistan, as a country with an avowed policy of Islamisation, has not been able to overcome the inherent conflict of the traditional Muslim personal law and the modern state's version of Muslim personal law when it came to the talaq al-bidah.
India, in contrast, has not even begun to address the tricky issue of the triple talaq through any form of legislation. We know quite well why this is so. First of all, it has been a distinct pattern of South Asian law-making that the post-colonial state would tackle reforms in the respective majority personal law, but not in the minority laws, unless requested to do so. For India, this meant a focus of reformist zeal on Hindu laws, for Pakistan and Bangladesh efforts have been concentrated on reforms to the Muslim personal law.
In India, the triple talaq as a unilateral form of divorce has continued to be perceived as a grave problem (Ahmad, 199410 ), even as modern Hindu divorce law developed more and more grounds for terminating a marriage unilaterally through modern statutes. As we now recognise in Britain, too, the unilateral right to terminate a marriage is not in fact what is perceived as negative in itself, since this is seen as modern and individualistic. What is treated as objectionable is merely the fact that the Muslim husband alone should be able to claim this right, while the Muslim wife is told that she does not possess the same unilateral discretion. But is this really what Muslim law says, or is this merely a bargaining position created by scholars? I have indicated already that here in India we continue to believe that Muslim women have no right to seek a divorce in their own right, while in Pakistan, the 'equality of misery' between spouses has had the effect that Muslim men now have to fear being divorced and can no longer rely on the safety of matrimonial ties under their control. So the conditions in the two countries are quite different, with Bangladesh somewhere in between, sitting on the fence when it comes to legal reforms, looking across the border to India, yet remaining to some extent tied by pre-Independence Pakistani laws.
The prevailing view in India has been that the modern state should legislate on the triple talaq and should abolish it by statute as soon as possible. Cries of 'religion in danger' were the predictably dominant response. We know that the stalemate situation has continued up to the present. The argument that the Muslim communities themselves should monitor social abuses, that Indian Muslim societies should in essence reform themselves has been used a lot, not the least by Tahir Mahmood (1986), presently India's leading scholar of Muslim personal law. Apart from a lot of talk on reforming the law of talaq by statute in India, there has been hardly any legal action in this field.
In my view, it is unrealistic for the Indian state to even aspire to abolish the triple talaq by statute. If this purported abolition did not work in Pakistan, then it could not possibly be successfully implemented in India, where Muslims are bound to see any state interference in the personal law as an attack on their culture and religion. In my view, India has therefore been well-advised not to get involved in legislative reforms of the talaq that would only serve to raise communal tensions. Instead, India seems to have been exercising some modicum of control on the husband's absolute discretion to divorce through enforcing tougher post-divorce maintenance laws. The argument for this would be that since the state cannot stop Muslim men from divorcing, it can at least seek to regulate the socio-economic consequences of marital breakdown. The same objective could be achieved through careful use of stipulations in marriage contracts about dower (mahr), as advocated by Professor Fyzee in his own time, but so far this has not become a common phenomenon, it seems.
Significantly, Bangladeshi Muslim law, too, has now taken the view that notice of divorce is not essential, as reported in Sirajul Islam, DLR (1996) 48. Here, too, then the modern state has given up on seeking to regulate the field of Muslim divorce law through the introduction of modern, state-sponsored and state-supervised procedures.
In the United Kingdom today, we have almost twenty lakhs of Muslims from all over the world, but with a majority of South Asian Muslims. These large Muslim populations have over time evolved a new form of combining the formal legal requirements of English law and the rules of traditional Muslim law on marriage, polygamy, divorce and much else. It is this combination of hybrid legal rules into a new amalgam which I have called angrezi shariat. This means for a Muslim couple wishing to marry in Britain today they would normally have two marriages, a registered marriage for the purposes of English law, and the Muslim nikah, in this particular order, so that cohabitation would not normally take place unless the spouses have been married according to English law. Some Muslim couples undergo only a nikah in England (and are then obviously not married in the eyes of the law), and very few Muslim couples have only a registered marriage. Let me just add, by way of explanation, that English law is of course only concerned about the registered marriage and therefore sees only one marriage where there were two, while Muslim couples will normally be quite aware of the legal hybridity they have created or have, often purposely, avoided.
For our present analysis, the crucial point is that if there are two marriages, then there also need to be two divorces in case the marriage breaks down. But how does that work? First of all, let us note that a Muslim wife in Britain today is just as much at risk of being divorced by an instantly effective triple talaq as a wife in South Asia. It may not be valid in English law, but if the Muslim husband utters a triple talaq, the marriage is over there and then. In other words, in the UK, too, even if they know that their personal law is not legally valid in that country, Muslim husbands will still claim the right to exercise their prerogative to divorce under Muslim law and will terminate their marriage as they please. English law cannot assist such a wife at all in opposing the talaq, and of course a dutiful Muslim wife, or ex-wife, would not go to court saying that she did not want to be divorced, knowing that the husband has a more or less unfettered right to terminate the marital contract.
If it was the Muslim husband who initiated the divorce and even if he pronounced talaq in an Islamically effective way, a Muslim couple who had a registered marriage in England (or whose marriage was recognised as legally valid under the provisions of private international law) would of course still be married under English law, despite the talaq. To complete the divorce, therefore, the Muslim husband would have to file a divorce petition in an English court, although from a Muslim perspective there may be nothing left to dissolve. The main point to make here is that the Muslim husband is normally able to have his talaq rubberstamped by the English legal authorities without any fuss and delay. This has been possible because the English divorce procedures have been simplified more recently to the point of casual administrative supervision rather than full judicial control. Thus, if the divorced Muslim wife does not complain, and does not make any claim against the husband, an English court will not even notice that it is in fact merely confirming the talaq divorce given by the Muslim husband to his wife under angrezi shariat. Since the English legal system does not wish to take official account of the Muslim personal law as it operates unofficially in the UK today, all the English law sees is yet another divorce added to the growing statistics, with no recognition of Muslim cultural or religious elements.
The matter is not so simple, though, if it is the Muslim wife who initiated the divorce in England. In this case, given the traditional reservations against the rights of Muslim wives to demand or bring about a divorce, the common pattern has become that a Muslim wife in Britain will approach the relevant district court with a petition for divorce. The English court may, if the husband does not object, rather swiftly grant the Muslim wife a divorce, and thus facilitate her exercise of the right of khula. But the matter does not end there, since the English court decree of course only dissolves the English registered marriage, and not the Muslim marriage. So, how will the Muslim wife now get rid of the Muslim marital tie, given that there are not supposed to be any qazis and other judicial authorities in the UK?
The answer is that there are today many qazis operating in Britain. We find now several so-called Shariat Councils and other bodies which claim to represent the interests of British Muslims, offering their assistance in sorting out complex questions of Muslim personal law outside the ambit of the official English law. For a modest fee (often around œ50), a Muslim wife can explain her predicament and will be allowed to file a simple petition for an Islamic divorce, in case the husband is not willing to pronounce the talaq. In that situation, the evidence we now have about how such Councils operate shows quite clearly that the respective Muslim officials may pronounce a talaq on behalf of the husband, if he is unwilling to do so or if the husband has simply disappeared altogether. These new Shariat Councils in Britain are therefore recreations of the old qazi system, but they operate in the realm of unofficial law, until recently unknown to English lawyers and judges.
There may be many objections to the operation of such Councils, but their existence and practical impact is a fact which needs to be studied and understood.11 An important negative consequence of their operation, which does not concern us here, but is very important in practice, is that a Muslim wife who goes through this divorce procedure loses any right to her dower (mahr) and will normally either have to return what she was given already, or renounce any outstanding claim on the husband. In this way, Muslim husbands in Britain can exploit the plurality of legal norms and can, within the system of angrezi shariat, get rid of their wife and any financial obligations towards her. One may sense further potential for legal abuse here, but investigating this would lead us too far at this point. The critical conclusion to make from this section, focused on the evidence regarding Muslim divorces in the UK today, is that the English legal system, by not taking official notice of Muslim law, by basically refusing to recognise that Muslims practise legal hybridity on their own terms, is therefore unable to protect Muslim wives in the UK against being legally disadvantaged.
In conclusion, thus, as I stated in my hypothesis at the beginning of this lecture, wherever South Asian Muslims interact with a state legal system, legal problems and tensions are created which are simply inevitable, and which may not be easily resolved. Since it appears that most Muslims everywhere in the world treat shariat law as supreme over state law, whenever a particular state law seeks to superimpose itself, it faces problems of compliance. I do not have time to discuss this here, but there is strong evidence to suggest that even in staunchly secular Turkey and in countries like Tunisia this is the case. Focusing merely on South Asian Muslim laws in the subcontinent itself and in the UK, and on the issue of divorce, it is my argument that whatever a modern state tries to do to reform the Muslim law of divorce, it will not achieve its stated policy aims and will not bring about a straightforward legal reform, but will instead increase legal plurality and hybridity.
If, as we saw, even an Islamic state like Pakistan remains unsuccessful in legislating away the traditional Muslim prerogatives of a divorcing husband, and if in the UK today hundreds of thousands of Muslims reconstruct a new form of shariat instead of following the modern Western state law to the exclusion of their personal law, in total opposition to all axioms of Austinian legal theory, then there are important lessons here for post-modern, secular India and for the agenda of divorce law reform in this country.
I must reiterate here, therefore, that post-colonial India's approach of non-interference in the talaq system itself seems like a very wise move. Today's post-modern Indian state law is showing considerable diplomatic skill by intervening in matters of Muslim personal law only when there is a crisis of welfare, in other words, selectively and very carefully, given the lessons of the Shah Bano case12 . There is no benefit to be gained from enforcing legal reforms if all they create is bad blood and communalistic heat. In view of the evidence from other jurisdictions, there is also certainly no merit in seeking to subjugate key areas of Muslim personal law to state control for the sake of asserting legal centralism.
No state law, anywhere in the world, can ultimately protect spouses against being divorced if a marriage between two persons reaches the point of no return. Muslim law fully recognised the dangers of refusing legal realism in this respect, because of its supervening concerns to avoid extra-marital sexual relations, zina. Hence the safeguard of divorce procedures had to be maintained. It is a different matter that those procedures have been abused by men over time.
If the main policy concern in our present context is to protect women, and most Muslims are agreed that the freedom to contract into marriage is rightly matched in traditional Muslim law with discretion to contract out of it, then it is in my submission pointless to tackle the man's right to unilateral divorce as the main reason for social distress. What causes problems, as we know only too well, is that the consequences of divorce for women and children can be disastrous, and this is where legal reform needs to come in.
Now, to explore this would be the subject of a totally different lecture. I hope to have shown here with some clarity that there are other, more effective ways of protecting the interests of Muslim wives than to curtail the Muslim husband's right to unilateral divorce. It seems to me that Professor Fyzee in his wisdom showed the way in his own time, and none of his messages in this regard have lost any force or validity. It is preferable, he suggested, as we were reminded by Professor Lukmani today, to stipulate in the Muslim marriage contract all kinds of conditions that protect the interests of the Muslim wife, so that a husband's discretion to divorce becomes of necessity less absolute and less capricious. If that is the way forward, then all those who have argued that it is up to Muslim communities to get their own house in order have a point, indeed. Given the extra-legal nature of most of traditional Muslim family law, and the manifest resistance among Muslims the world over to bring their family law systems under official state control, there is a minimalist agenda of necessary state control here, and no need for the heavy guns of legislative interference, as so many scholars in their reformist enthusiasm continue to demand. Recent developments in the South Asian Muslim laws on divorce confirm that the modern axioms of state law must be understood to have important limits in terms of cultural specificity. It is simply not possible for a modern state legal system to do away with the traditional Muslim systems of divorce, the problem remains on the table and needs to be solved in ways other than through simplistic straightforward legal reform.
As a comparative legal scholar, I bow to Professor Fyzee's manifest wisdom and thank you for attending today's Memorial Lecture.
- Pearl, Daird and Werner Menski, "Muslim Family Law" (1998)
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- Coulson Noel "Islamic Law" in Derrett, J. Duncan (Ed.) "An introduction to legal systems" (1968) 54
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- A.A.A. Fyzee "Outlines of Muhammadan Law" (1999) 146
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- Ibid at 168-169
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- PLD 1967 SC 97
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- PLD 1963 SC 51
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- PLD 1982 FSC 265
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- For example see Mirza Qamar Raza, PLD 1988 Karachi 169
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- PLD 1993 SC 90
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- Ahmad, Furqan: Triple talaq: An analytical study with emphasis on socio - legal aspects, Regency, New Delhi (1994).
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- See King Michael (ed.) "God's law versus State Law - The construction of an Islamic identity in Western Europe" (1995)
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- Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556
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