Cheema & Bhalli, 1

Authors: Hussain Azam Cheema

Hassaan Mehmood Bhalli

How should the Courts in Pakistan adjudicate matters of Family Law pertaining to

Ahmadis?
 Cheema & Bhalli, 2

Ahmadiyya Community, followers of a heterodox sect of Islam, has been widely prosecuted over

the years1. They were constitutionally declared as Non-Muslims via the second amendment in

19742. This has resulted in the creation of a vacuum since under formal Pakistani law there is no

law relating to Ahmadis, specifically with regards to family law issues.3 This essay constitutes of

four main parts. The first part will explain the local judicial system established by the

Ahmadiyya Community in Rabwah i.e. “Darul Qada”. The second part can be sub-divided into

two constituents: 1) Can Ahmadis bring their cases in matters related to personal law to Family

Courts? 2) Does the Muslim Family Law Ordinance 1961 apply to Ahmadis? The third part of

the essay will expound on the legal status of Ahmadis in India and what laws are applicable to

them. In the last part, the essay will seek to propose a solution as to how should the Courts

decide in family matters pertaining to Ahmadis. Mainly, this paper will seek to establish that, on

the grounds of customary law and justice, equity & good conscience, Pakistani Family Courts

should adjudicate matters related to personal law of Ahmadis according to the Hanafi Law.

The basic platform used by the Ahmadiyya Community to solve dispute between its members is

department of justice, known as “Darul Qada.” It was established according to the Islamic

Judicial System by Hadrat Khalifatul Masih II, in 1925 and solves disputes in accordance with

the Shariah.4 The main purpose of the Qada is to allow members of the community to solve their

civil (matters of family law in this case) matters internally within and avoid wastage of time and

money by going through the Government's legal system. Pertaining to the validity of Qada, the

1
‘Country Information and Guidance, Pakistan: Ahmadis’, (UK Home Office, May 2016)
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/522137/Pakistan-
_Ahmadis_v2.0.pdf> accessed 19 November 2016
2
Constitution of Islamic Republic of Pakistan, Art. 260(3)(b).
3
Werner Menski, Governance and governability in South Asian family laws and in diaspora (2013) 45 (1) JLP
<http://www.tandfonline.com/doi/full/10.1080/07329113.2013.772768> accessed 18 November 2016
4
Dr. Karimullah Zirvi, Welcome to Ahmadiyyat, The True Islam (Al Islam)
<http://www.alislam.org/books/ahmadiyyat/WelcomeBook2ndEd.pdf> accessed 18 November 2016
 Cheema & Bhalli, 3

fourth Khalifa of the Ahmadiyya community stated, “The fact is that almost every country of the

world permits members of its society to resolve their differences mutually through arbitration.

And in most countries, to my knowledge, arbitration is respected so much by the law that if,

irreversible arbitration is signed by both the parties involved, even then the Supreme Court

would not annul that decision.”5 It consists of knowledgeable and righteous persons as Qadis

(Judges) and a board, to which the decisions of the Qadis can be appealed – both the bodies are

selected by the Khalifa.6 Moreover, the last body for appeal is the Khalifa himself.

Similar to the state structure, judges of Qada only decree whereas the power to execute these

decisions vests with the department of “Nazir Umuri Ama”7. Moreover, Members of the

community who do not wish to choose common law courts in order solve their disputes, can

approach Qada as their preferred platform to seek solutions.8 However, for Ahmadis to bypass

Qada in order for civil courts, they first have to attain permission from the appropriate

department of the Community.9 As a consequence members do not necessarily have to take their

cases before the civilian courts of the country and the first preference for them to solve their

disputes regarding the family law is Darul Qada.10

However, if a dispute is not solved by Darul Qada or if the parties to the case do not agree with

the platform, then they can take their case to civil courts of the country. In cases of family law in

Pakistan, the Family Court Act of 1964 allows Pakistani citizens to come to the courts to solve

their disputes. Along with the discussion of application of Muslim Family Law on Ahmadis, the

5
Shaikh Khurshid Ahmad, A Brief History of the Ahmadiyya Movement (Al Islam)
<https://www.alislam.org/library/history/ahmadiyya/59.html> accessed 18 November 2016
6
Supra Note 4.
7
Ibid.
8
Ibid.
9
Ibid.
10
Supra Note 5.
 Cheema & Bhalli, 4

courts have decreed on the dispute- whether Ahmadis can bring their cases to family courts or

not. For example in Riaz Javaid v. Sheraz Ahmed11, the court ordered, "it is abundantly clear that

the Family Courts established under the Act, 1964 embraces personal laws of all religions and

entertain causes relating to matters mentioned in Para 1 of the schedule to the said Act which

include matters pertaining to non-Muslims (including Ahmadis)". Thus, it has been established

that Ahmadis can bring their family matters to the Family Courts of Pakistan.

Furthermore, the main issue arises in deciding whether Muslim Family Law applies to Ahmadis

in Pakistan or not. According to Section 1(2) of Muslim Family Laws Ordinance 196112, Islamic

personal law is applicable to Muslims only does not apply to Ahmadis. The relevant section of

the Ordinance is stated as:

“It extends to whole of Pakistan, and applies to all Muslim citizens of Pakistan, wherever they

may be.”

Moreover, the courts have dealt with this issue and answered it negatively, i.e. Muslim Family

Law Ordinance of 1961 does not apply to Ahmadis since they have been declared Non-Muslims

by the 2nd amendment. In Basharat Ahmed v. Mst. Shamim13, the court dealt with the issue of

demand of Khula by an Ahmadi woman. It was held, “Word Khula is not found anywhere either

in Black's Law Dictionary or in the Oxford dictionary, therefore, on the basis of the above it is

clear as crystal that concept of Khula is purely an Islamic concept. Therefore, Non-Muslim

woman cannot claim Khula from the court under the proviso to Section 10(4) of the West

Pakistan Family Courts Act 1964 as the same is purely an Islamic concept.” It becomes implicit

11
2010 CLC 1925
12
Muslim Family Law Ordinance 1961, s 1(2)
13
PLD 2016 Lahore 271
 Cheema & Bhalli, 5

from this judgment that since Khula is a concept of Islam and does not apply on Ahmadis as they

are declared Non-Muslims, therefore, no Muslim law shall not be applicable on them either.

Moreover, in Farah Chahuhdry v. Shahid Mahmood Malik14, the dispute for the court was of

inheritance of an Ahmadi granddaughter, who claimed that she should inherit from the estate of

her deceased grandfather according to section 4 of MFLO 1961. In response, the court ordered,

“It flows from the above that the provisions of Muslims Family Laws Ordinance, 1961 have only

been made applicable to Muslims citizens of Pakistan, therefore, the provisions of the said

Ordinance would not be attracted in the case of non-Muslims. As Ahmadis have been declared as

non-Muslims by the Constitutional Amendment, therefore, the only irresistible conclusion,

which can be drawn is that the provisions of Muslims Family Laws Ordinance, 1961 are not

applicable to Ahmadis”. In result, the petitioner was not allowed to inherit from her grandfather.

Similarly, in Rashid Ahmad v. Mst. Musarat Jehan Begum15, it was decreed that Muslims Family

Laws- Ordinance, 1961 does not apply to Ahmadis. Therefore, in light of the above case law, it

can be maintained that Muslim Family Law is not applicable to Ahmadis in Pakistan.

Now the pertinent question becomes, if Muslim law does not apply to Ahmadis then what

principles/guidelines/rules/law will the court resort to in matters related to personal law issues of

Ahmadi citizens of Pakistan. A distinction needs to be highlighted from the outset which

distinguishes the case of Ahmadis from other non-Muslim minorities; unlike them the Ahmadis

claim to be ruled by the same teachings, same books and even same religious tradition i.e. Hanafi

tradition as most of the Muslims in Pakistan. This similarity is pointed out by Mr. Ali Usman

Qasmi as he describes it as ‘the commonality of belief, practices and Kalma of the overwhelming

14
2005 YLR 29
15
1986 MLD 1010
 Cheema & Bhalli, 6

majority of Hanafi Sunnis and Hanafi Ahmadis’.16 Before being declared as non-Muslims in

1974, they were governed by ‘Muslim personal law in the area of family law.’17

Before dwelling on the proposed solution, it is necessary to look at the situation of Ahmadis in

India. Ahmadis are considered to be Muslims in India, as per the rule laid down in the landmark

case of Shihabuddin v. K.P. Ahammed18. The court relied on Mulla’s Principles of

Mohammaden Law as it stated that a person born a Muslim remains a Muslim until he renounces

Islam as long as he believes in One God and Muhammad being His Messenger (Ahmadis believe

in both of these tenets). The Courts in India too, like Pakistan, presume every Muslim to be a

Hanafi unless otherwise contended.19Therefore, for the purpose of law and family law matters,

they are considered to be Muslims and governed by Hanafi law.

It is important to note a specific issue i.e. lack of any specified or codified law for Ahmadis.

Although, there is a book on law in Ahmadiyya tradition, Fiqa Ahmadia, but the courts have

specifically alluded to it only once in 2005 in Farah v. Shahid20. However, Justice Mansoor Ali

Shah, in Riaz v. Sheraz21, stated that lack of codification for Ahmadis should not be an issue

since there are various aspects of Islamic law too which are not codified but that does not affect

its legitimacy in any way. In addition, it was also emphasized that other minorities have been

able to contend their cases in instances of non-codified personal law e.g. in case of Hindu

Personal Law in Jagsi v. Shr. Marwan22 and for Christian Personal law in Masood Sadiq v. Mst.

16
Ali Usman Qasmi, The Ahmadis and the Politics of Religious Exclusion in Pakistan (Anthem Press 2015) 223
17
Martin Lau, ‘The case of Zaheer-ud-din v. The State and its impact on the fundamental right to freedom of
religion’ CIMEL Yearbook Vol.1: Islam and Fundamental Rights in Pakistan
<https://www.soas.ac.uk/cimel/materials/intro.html> accessed 19 November 2016
18
AIR 1971 Ker 206
19
Khamarunnisa v. Fazal Hussain, 1997 (1) ALT 152, AP HC
20
2005 YLR 29
21
2010 CLC 1925
22
PLD 2005 Karachi 334
 Cheema & Bhalli, 7

Shazia23. Thus, non-codification of family law for Ahmadis should not be an obstacle for them in

seeking relief via Family Courts in Pakistan.

Lastly, this paper proposes that courts should solve cases of Ahmadi personal law, as a practice

of judicial intervention in the interest of minority rights, by reference to Hanafi law based on two

fold reasoning. First of all, it can be justified under the notion of custom. This idea was first put

forward in the minority judgment of the iconic Zaheeruddin v. State24 case. Justice Shafiur

Rehman contended that the practices under question should be permissible on the grounds that

they were ‘not of recent origin or device’ i.e. were customary in nature. It is also of importance

to take a look at the rules governing certain Muslim communities in India and Pakistan i.e.

Khojas, Bohoras and Memons. These communities, despite being Muslims, have been given the

leeway of still following their own customary laws.25 The criterion for custom to prevail over

Muslim law has been defined by Fyzee as follows:

‘First, the burden lies heavily upon the person who asserts to plead the custom relied

upon and prove clearly that he is governed by custom… Secondly, as proof of custom, there is in

law no presumption in favour of custom and the custom must be ancient, certain, and not

opposed to public policy.’26

If on such grounds, custom can prevail over Islamic law for Muslim communities then custom

can certainly be used as a reason to apply a minority’s customary law on them. Custom is

certainly favored in Islamic Jurisprudence as it is recognized as a valid source of law. Moreover,

as per Justice (R) Fazal Karim, before the Shariat Act of 1948, each district in was governed by

23
PLD 2008 Lahore 398
24
1993 SCMR 1718
25
Syed Khalid Rashid, Muslim Law (Eastern Book Company 2004) 45
26
AAA Fyzee, Outlines of Muhammadan Law (Oxford University Press 2014) 168
 Cheema & Bhalli, 8

its own, different customary law. Therefore, the courts in Pakistan can certainly use it as a reason

for governing Ahmadis by the Hanafi law.

Apart from custom, courts can also apply the Hanafi law on them in line with their claim. This

can be justified both religiously and legally. During the Prophet’s lifetime, after the Battle of

Trench, the issue arose of Banu Qurayza, a Jewish tribe in a peace treaty with Muslims, siding by

the Meccans during the Battle. After the conclusion of battle, the Prophet on the Jews demands

concluded that the punishment will be decided upon in light of their own law.27 Since, the

Ahmadis claim to follow the Islamic law so it will be religiously justified to decide their matters

as per the Islamic law. This view has been substantiated by the Lahore High Court in Mobashir

v. Bukhari28 that Islamic law cannot be applied to non-Muslims in general, however, Ahmadis

claim to be bound by the Qur’an and Sunnah, therefore, Muslim law will apply to them under the

principle of justice, equity and good conscience.

Thus, this can be a way for the courts to apply Muslim law on them without having to officially

enquire their legal status as Non-Muslims. This can help in eradicating the barriers to justice as

this will serve as a means of improving the access to justice for Ahmadis while avoiding the

usual social unrest related to reforms pertaining to them.

In conclusion, the paper has effectively illustrated the legal paradigm for Ahmadis in matters of

family law in Pakistan. Darul Qada is present as a parallel to the prevalent court system for

Ahmadis to solve their civil matters within their community. Moreover, Ahmadis can also bring

their cases to Family Courts under West Pakistan Family Court Act 1964 but, at the same time,

Muslim Family Law Ordinance 1961 does not apply on them due to their legally defined status

27
Daniel C. Peterson, Muhammad, Prophet of God (Wm. B. Eerdmans Publishing Co. 2007) 127
28
PLD 1978 Lahore 113
 Cheema & Bhalli, 9

as Non-Muslims. The paper also examines the laws applicable to Ahmadis in India where they

are considered to be Muslims. In the end, the essay, on the basis of custom and principle of

justice, equity & good conscience, suggests that courts should apply Hanafi law in personal law

issues of people of Ahmadiyya Community.