What's the Constitution Got to Do with It? Regulating Marriage in Pakistan

By Yefet, Karin Carmit | Duke Journal of Gender Law & Policy, August 2009 | Go to article overview

What's the Constitution Got to Do with It? Regulating Marriage in Pakistan


Yefet, Karin Carmit, Duke Journal of Gender Law & Policy


I. INTRODUCTION

Pakistan's legal regime, particularly the status of its women, is the subject of considerable academic and media interest both domestically and internationally. (1) The legal plight of Pakistani women is well documented, and virtually all accounts stress the brutality with which their rights are violated. They are portrayed as subject to a legal system that allows them to be veiled, secluded, silenced, harassed, mutilated, forced into prostitution, beaten, raped, murdered, and otherwise humiliated. (2) This study, however, seeks to unravel for the first time a different and surprising picture of the marital rights of Pakistani women and the protection afforded them by the Constitution.

While the legal literature is replete with discussions of both marriage law and constitutional law, the interplay between the two within the context of Islam seems to have largely escaped scholarly attention. This article seeks to fill this gap; it explores the actual and potential intersections of Pakistan's Constitution with legal regulation of marital love, and reveals the uniqueness of this system and its striking sensitivity to women's rights.

Examining the Constitution's impact on marriage law in Pakistan is a tricky endeavor. To begin with, the supreme law of the land seems to embody a blatant contradiction. The Pakistani Constitution extends protection to an impressive catalog of fundamental rights, placing Pakistan in line with some of the most western-minded constitutional regimes in the world. (3) At the same time, in contrast to the American-style constitutional commitment to separate church and state, (4) the Pakistani regime is constitutionally committed to integrate the two, in the sense that all laws must conform to the injunctions of Islam as a condition of their constitutional validity. (5) So the same Constitution that protects western fundamental rights also elevates Islamic law, a legal tradition usually associated with the loss of rights. (6) This raises the question of how a legal system is expected to adequately function when its defining document seems inherently flawed, and how its judges are meant to carry out its conflicting mandates faithfully, especially when dealing with the delicate regulation of marriage. Interestingly, this fundamental dilemma is not unique to Pakistan; more and more countries in the Islamic world are facing a similar problem. (7)

This article suggests an answer to this question. Using the fascinating Pakistani system as a case study, it argues that Islamic law and human rights are not competing or contradictory, but rather compatible and complimentary, and that together they have in fact provided comprehensive protection to Pakistani women's marital rights.

To fulfill its end, the article is comprised of two chief parts. The first is designed to familiarize the reader with the constitutional system of Islamic governance in Pakistan. It briefly sketches the fundamentals of Pakistan's constitutional jurisprudence and focuses on the tension between human rights and Islamic law at the heart of the Constitution. The second part analyzes the impact of these two constitutional norms on the regulation of marital love in Pakistan. It explores the ingenious interpretive techniques Pakistani courts have developed in order to harmonize the constitutional scheme and defend women's rights when addressing controversial issues, which range from prerequisites to marriage, legal and culturally based restrictions on marital freedom and polygamous marriage, to marriage and divorce registration. Ultimately the article concludes, the exemplary Pakistani regime may potentially serve as an illuminating model for the productive and complementary utilization of Islam and constitutional jurisprudence in the regulation of a marriage law respectful of human rights.

II. WEDDING ISLAMIC LAW TO HUMAN RIGHTS: OUTLINE OF A UNIQUE CONSTITUTIONAL PROFILE

The relationship between Pakistan and Islamic law is quite unique. …

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