tive poet politician Iqbal’s criticism of the rigidity
that had crept into Islamic legal structures after ijti-
hàdhad been eliminated in the fourth century to
argue in support of ijtihàd. The commission exer-
cised self-censorship, anticipating a conservative
backlash. It conceded that it could not interfere
with the Sharì≠a but with real life issues that should
not be the monopoly of theologians.
The sole theologian on the commission, Maw-
lana Haq, objected to its attempts to broaden the
scope of ijtihàdand questioned the validity of
equating Islamic scholars with laymen because
there is no priesthood to define Islamic concepts.
While the Muslim Family Ordinance went some
way to redressing the shortcomings of the 1937 and
1939 acts, it tried to avoid taking on the tradi-
tionalists by relying on judges to interpret laws
liberally. Women were now able to use “incompat-
ibility” that included sexual dissatisfaction and
aversion to husband as a basis for divorce if they
gave up the right to financial compensation. How-
ever, some courts ignored the financial renuncia-
tion leaving the husband to sue for it in another
court (Haidar 2000, 328, 332–3, 335). On issues of
custody Pakistani law follows traditional law and
reiterates the mother’s subordinate custody to that
of the father in accordance with the Guardians and
Wards Act (Pearl and Menski 1998, 412). In many
recent cases, however, as in Shahzad Muhammad
Sidiq v. Shahnaz Farzana (1997) judgment was
based on the best interests of the child (Pearl and
Menski 1998, 418).
Under General Zia ul-Haq (who seized power in
1977) there was a definite move to bring Pakistan
closer to being an Islamic state. A Federal Shariat
Court was created to verify the Qur±ànic authen-
ticity of personal law legislation. The Hudood
Ordinances outlawed extramarital relations and
alcohol, and promoted interest free banking; it
also ruled as anti-Islamic the activities of Qadian,
Lahori, and Ahmadi groups. The Qanun-e-
Shahadat (Law of evidence) 1983–4 differentiated
the legal testimony of women to their detriment
from that of men and made no distinction between
adultery and rape, leaving women to bear the pun-
ishment for both (Esposito and DeLong 2001, 90).
The Pakistan Dowry and Gifts (Restriction) Act
1976 states that the gifts brought to the marriage
by the wife are and remain her property, noting that
in Muslim law husband and wife retain their inde-
pendent legal status, though this is often obstructed
by patriarchal social structures.
south asia 471bangladesh
Though Bangladesh inherited Pakistani laws,
changes were made, such as the Muslim Marriages
and Divorce (Registration) Act 1974 that made reg-
istration of all marriages compulsory (though not
mandatory). Maintenance rights for divorced women
have been liberally interpreted by the Bangladeshi
courts with judges re-examining the relevant Qur±ànic
passages. Judge Mohammad Gholam Rabbani J.
ruled that “every Muslim can and should read and
interpret the Qur±àn and it must be in the light of
the existing circumstances in changing needs of the
world.” He further stated: “it is an article of faith
of a Muslim that he should follow without ques-
tioning what has been revealed in the Qur±àn and
disobedience thereof is a sin.” On maintenance he
ruled that, “a person after divorcing his wife is bound
to maintain her on a reasonablescale beyond the
period of iddatfor an indefinite period, that is to
say till she loses the status of divorcee by remarry-
ing another person” (Pearl and Menski 1998, 225).
In the case of Mosammat Nur Akhtar v. Abdul
Mabud Chowdhury (1996) in which the husband
had alleged that his wife had left him voluntarily so
no maintenance was due, the wife produced docu-
mentation that he had sought permission from the
local Union Council to marry another woman.
While granting the divorced wife maintenance
Judge Rabbani ruled that section 6 of the Muslim
Family Law Ordinance of 1961, regarded as per-
mission for polygamy, was against Islamic law and
should be deleted from the Ordinance (Pearl and
Menski 1998, 226). On the question of custody,
Bangladeshi courts have been more conservative
and ruled that the mother has custody of her minor
daughter till she attains puberty (unless she first
marries a person not related within the prohibited
degree) as in the case of Akter Jahan Tanzia alias
Bab v. state (1986) B.L.D. 281 (Pearl and Menski
1998, 423).Bibliography
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19983.Shahida Lateef