JILIL Vol 14 Issue 1 2018 - Article 1

Contribution of the Lahore High Court in The Development of Islamic Family Law in Pakistan
Dr Shahbaz Ahmad Cheema, Dr Muhammad Zubair Abbasi, & Asad Ullah Khan

This paper highlights the contribution of the Lahore High Court (LHC) towards the development of principles of Islamic family law in Pakistan. To this end, we have conducted a comprehensive analysis of relevant case law relating to various aspects of Islamic family law including marriage, dower, dowry, maintenance of wife and children, triple talaq, khula and its compensation, legitimacy and paternity, guardianship and custody, and inheritance law. Our analysis shows that the judges of the LHC frequently refer to the injunctions of the Qur‟an and Sunnah to: i) cultivate a distinct Islamic identity for Pakistani legal regime; and ii) to incorporate the right oriented approach informed by the principles of human rights in Pakistani legal consciousness. However, in this process, the LHC has to maneuver through the structural formalities of Pakistan‟s legal system shaped by procedures and precedents of Anglo-Muhammadan law which is an articulation of Islamic law by colonial judicial system. In order to circumvent the structural inhibitions, the LHC employs a progressive approach towards the Qur‟an and Sunnah along with inculcation of right based approach for underprivileged and less advantageous segment of the society. Such an approach inventively aligns the colonial past, the classical Islamic family law, and the demands of post-colonial circumstances which is indeed a unique contribution of the LHC. This analysis demonstrates how a post-colonial judicial regime can cultivate a distinct legal identity without being disloyal to its past.

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