Papers by SHAHBAZ A H M A D CHEEMA
MJTILP, 2023
Section 4 of the Muslim Family Laws Ordinance (MFLO) in Pakistan is a benevolent legal provision ... more Section 4 of the Muslim Family Laws Ordinance (MFLO) in Pakistan is a benevolent legal provision for the inheritance rights of the children of predeceased children of propositus who are disinherited under classical Islamic law of inheritance. However, after the lapse of more than six decades since this enactment, no uniform and coherent formulae have been devised to construe and apply it. Many interpretive tensions have arisen during the course of its application by the judiciary which the present article explicates. The foundational tension was created when a class of non-legal heirs was converted into legal heirs and transposed on a self-contained scheme of classical Islamic law of inheritance. The enactment of the Muslim Personal Law (Shariat) Application Act 1962 also contributed to the engendering of interpretive tensions. Furthermore, the judiciary’s concern for the disinheritance of orphaned grandchildren under classical Islamic law of inheritance, if Section 4 is not followed, manifests its potential for interpretive tensions. The paper argues that the construction of Section 4 by the judiciary is characterised by two considerations: the first is Islamic transformation of the provision, and the second is a will to protect orphaned grandchildren’s interests.
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Manchester Journal of Transnational Islamic Law and Practice, 2022
The idea of an ‘Islamic state’ is hotly contested in Islamic Republic of Pakistan. This article h... more The idea of an ‘Islamic state’ is hotly contested in Islamic Republic of Pakistan. This article has selected three renowned Pakistani scholars, namely, Syed Abul Ala Mawdudi (1903-1979), Muhammad Asad (1900-1992), and Javed Ahmad Ghamidi (1951), for the analysis of their theories of an ‘Islamic state’. The methodologies adopted by these scholars draw upon the Islamic tradition based on the primary sources of Islamic law, i.e., the Quran and Sunnah. The first two scholars participated in the process of constitution-making through their writings in the wake of the emergence of Pakistan on the world map, whereas the third scholar entered into this scholastic debate in the early 1990s. The research in this article reveals that although these scholars have converged on some generic principles on the conceptualisation of Pakistan as an ‘Islamic state’, there are notable differences of opinion among them making the claim of any essentialist ‘Islamic state’ problematic. The article proposes that the political thoughts of these scholars can be understood from the framework of idealism, pragmatism, and minimalism noticeable in the political thought in medieval Islam, and concludes that Mawdudi is a perfect illustration of idealism, in addition to sporadic reliance on pragmatism during his political struggle, Asad is primarily a pragmatist while clinging to idealism theoretically, and Ghamidi presents a classical illustration of minimalism.
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The Asian Yearbook of Human Rights and Humanitarian Law, 2022
This article analyzes various shades of opinion on status of women from Islamic perspective. Many... more This article analyzes various shades of opinion on status of women from Islamic perspective. Many scholars have expressed their opinions ranging from gender neutral readings to discriminatory constructions of the divine sources. The modernist scholars assume that traditional manner of religious interpretation of the divine texts does not satisfy the modern urge for egalitarian construction of Islam and argue for re-evaluation of traditional oeuvre for striking an equilibrium on women's status. On the other hand, the traditionalists refuse to put critical glance on traditional corpus including the personal opinions of jurists as if they are divinely ordained. In this context, two apparently distinct but theoretically interlinked issues, i.e. the status of women in private and public spheres, are selected for analysis in the article. The same concepts, qawama and segregation of sexes, are instrumental for shaping the opinions for both spheres. In addition to identifying the potential of the divine sources for engendering an egalitarian and non-discriminatory environment for women, the article emphasizes that there is a need to go beyond scriptural re/construction to bring an efficacious and long-term transformation to women in Muslim societies.
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Generally when an image of Federal Shariat Court (hereafter referred to as FSC) as established un... more Generally when an image of Federal Shariat Court (hereafter referred to as FSC) as established under the Constitution of Pakistan, 1973, emerges in one’s mind he/she is disposed to assume as if it is an unnecessary intervention into the legislative process of the country. This image of the FSC is founded on the powers conferred on it by the Constitution. The FSC has been granted power to declare the laws enacted by the legislature as unislamic if they do not conform to the dictates of the Quran and Sunnah of the Prophet; hence liable to be amended by the legislature or replaced by the decision of the FSC. This image of the FSC is further deteriorated by dominant narratives about its role in academia. This paper contends that the over-emphasis on such portrayal of the FSC would be misplaced and likely to distort the other side of the picture. As a matter of fact, the FSC has pronounced a number of judgments which are progressive in nature and contributive to the reformist trends in I...
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SSRN Electronic Journal, 2019
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International Journal of Physical and Social Sciences, Apr 8, 2014
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Islamic Studies Vol. 59 (4), 2020
Construction of authenticity in Islamic law on contentious issues including gender-related issues... more Construction of authenticity in Islamic law on contentious issues including gender-related issues is an outcome of an intricate and complex process of interaction between the divine and human agency situated in a specific sociopolitical context. The divine text is not monolithic and is susceptible of various interpretations. It is this interpretative space, which is employed by scholars coming from various backgrounds to articulate their authenticities. Hence, we do not find one authentic perspective on many issues. Without preferring one perspective to others, the paper aims to analyze the process of constructive mechanics by engaging with the issues of polygamy, dissolution of marriage by divorce and khul', and women's participation in political domain. For this purpose, it has attempted to deconstruct the constructive process of authenticities relating to these issues with an object to discern how mush these authenticities are product of the divine agency and where they are influenced by human agency located in a specific context.
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Journal of Islamic Thought and Civilization, 2021
With the proliferation of the internet, new modes of access and dissemination have been invented.... more With the proliferation of the internet, new modes of access and dissemination have been invented. This paradigmatic shift is not only providing a stimulus for science and technology, but traditional fields of knowledge, such as religious studies and allied disciplines, are also among its beneficiaries. Once it was an uphill task to find a scholar well versed in Islamic inheritance law and ask for advice on the distribution of a deceased's estate. Various online inheritance calculators have made it convenient, and to some extent, eliminated the inevitability of the consultation with scholars of inheritance. In this background, the paper analyzes some accessible online inheritance calculators and explores their strengths and weaknesses. For evaluative purposes, two benchmarks are devised: one is 'accuracy score' and another 'efficiency grade'. The outcome of the assessment is mixed. Despite the accessibility of online calculators, one should not repose outright confidence without being aware of their merits and demerits. Some calculators have evolved a smooth and efficient system to solve a large number of propositions of inheritance, while others lack proficiency and accuracy.
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Pakistan Journal of Islamic Research, Vol 22 (1), pp. 13-28, 2021
In Pakistan, Hanafi version of Islamic law of inheritance is followed by the courts in view of ov... more In Pakistan, Hanafi version of Islamic law of inheritance is followed by the courts in view of overwhelming number of Sunni Hanafi Muslims unless proved otherwise. Despite accurate appraisal of Islamic law of inheritance by the superior courts in general, one specific issue has been causing problem for last many years. In Saadullah v Gulbanda (2014 SCMR 1205), the Supreme Court excluded consanguine brother from inheritance in presence of full sisters that stirred debate about entitlement of those residuaries who are remotely related to deceased than full sister/s. This judgment is based on the faulty appraisal of Islamic law of inheritance by misreading the chart of residuaries prepared by D. F. Mulla"s Principles of Muhammadan Law. Case law analysis in the article reveals that, prior to the above mentioned case, the courts appreciated the analogous matters more accurately. The article presents correct perspective of Islamic law of inheritance on the subject with an expectation that the Supreme Court would revisit its erroneous approach for the protection of inheritance rights of eligible legal heirs.
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Al-Qamar, Vol 4 (1), pp. 1-18, 2021
This paper analyzes the rules of evidence as articulated in Indian Evidence Act (IEA) 1872 and th... more This paper analyzes the rules of evidence as articulated in Indian Evidence Act (IEA) 1872 and the Ottoman Civil Code known as Al-Majallah al-Aḥkām al-Adaliyyah (Majallah). Both laws were enacted in the same era, i.e., 1870s, and have enjoyed a considerable influence. Their spatial proximity makes a case for their content analysis in a comparative manner. They have evolved similar rules in some areas, while differed on others. They are averse to hearsay evidence, and allow it occasionally. They follow comparable rules in the domains of admissions and presumptions. They recognize the concept of documentary evidence. Both laws are founded considerably differently in some important respects, such as, competency of witnesses, number of witnesses, and relevancy of facts and reliability of evidence. While specific number as well as gender of witnesses is prerequisite for proving civil cases in the Majallah, the IEA emphasizes on quality of evidence instead of quantity and gender of witnesses. The administration of oath to the parties is one of the grounds for decision under the Majallah, but it is conspicuously absent from the IEA. Despite introductory nature of this study, the paper enriches academically about the considerations and thoughts shaping two great legal traditions, i.e., Islamic law and common law, for discovery of truth in litigious matters.
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LUMS Law Journal, 2020
The Federal Shariat Court (FSC) of Pakistan is vested with an extraordinary jurisdiction to exami... more The Federal Shariat Court (FSC) of Pakistan is vested with an extraordinary jurisdiction to examine laws and customs having the force of law in terms of their conformity to Islamic injunctions. The role of the FSC is evaluated from the perspective of those decisions in which it has declared various laws as repugnant to Islamic injunctions. This paper brings into focus those decisions of the FSC in which laws have not been declared as repugnant to Islamic injunctions and attempts to figure out the implications of such decisions. These particular decisions, though far surpass from the decisions of repugnancy, have attracted less scholarly attention. This paper posits that the 'non-repugnancy' decisions strengthen the statehood and constitutional polity of Pakistan in several ways: they broadly identify a theory of legislative competence and autonomy of the state from the Islamic perspective; extend religious sanctity to laws many of which were enacted during British colonial period, and, by doing so, problematise politically motivated calls for 'Islamisation' of laws in Pakistan.
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Islamic Studies 59 (1), 2020
Under classical Islamic family law, a husband has the right to enter into a maximum of four marri... more Under classical Islamic family law, a husband has the right to enter into a maximum of four marriages at a time. State regulation under the Muslim Family Laws Ordinance 1961 (MFLO), however, has restricted such privilege of husbands by requiring them to get permission for their polygamous marriages from the Union Council based on valid reason. Failure to do so is a criminal offence liable to punishment including imprisonment and fine. In addition to surveying the statutes and case law on the regulation of polygamy, this paper analyzes the impact of second marriage of parents on their right to the custody of children. Based on this analysis, we argue that the official Muslim family law in Pakistan prefers monogamy not only by regulating polygamous marriages, but also by denying the right of custody of children to polygamous husbands.
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Pakistan Journal of Criminology Vol. 11(4), 2019
Technique of corroboration plays a vital role in appreciation and evaluation of evidence in judic... more Technique of corroboration plays a vital role in appreciation and evaluation of evidence in judicial proceedings. Its purpose is to ensure conviction of real culprits and to prevent wrongful punishment of innocent persons. This paper analyzes the relevance and significance of technique of corroboration in criminal justice system of Pakistan. It discusses circumstances that necessitate corroboration and how that necessity is met in the judicial proceedings. In Pakistan, some witnesses and pieces of evidence are corroborated to usher them reliability when they are found to be lacking credibility or of suspicious nature. The requirement of corroboration is not necessarily dictated by law: it is mandated by prudence, caution and practice for satisfying the judicial conscience as to credibility of a witness and reliability of original evidence. When a witness or original evidence does not meet the requisite standard of credibility and reliability, that particular situation generates a "reliability void". This reliability void necessitates resorting to technique of corroboration to ascertain veracity of such witness or for bestowing trustworthiness to such evidence. However, corroboratory evidence does not convert an absolutely unreliable witness or piece of evidence into a reliable one.
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Islamic Studies, Vol. 58, No. 4, 2019
In Pakistan’s constitutional dispensation, the Federal Shariat Court (FSC) is empowered to ascert... more In Pakistan’s constitutional dispensation, the Federal Shariat Court (FSC) is empowered to ascertain the invalidity of laws from the perspective of Islamic injunctions. The paper problematises the constitutional authority of the FSC by exploring the process of Islamisation of the suit for restitution of conjugal rights (RCR). The RCR was grafted during British colonial era onto Muslim personal law (Anglo-Muhammadan Law) as applied in Indian subcontinent. This has recently been held by the FSC to be in consonance with injunctions of Islam. In this background, the paper raises some questions as to the jurisdiction of the court and how that jurisdiction/authority is exercised. It posits that the “default legal system” is placed at a privileged position and its Islamic validity is presumed to be well established, unless it is questioned on the basis of definitive verses of the Qur’an and unequivocal sayings of Prophet Muhammad (peace be on him). It is the outcome of this judicial approach that the FSC has sanctified from Islamic perspective an instrument (i.e., RCR) that is peculiar to the Christian ideal of monogamous and indissoluble marriage, without having any plausible foundation in Islamic legal sources.
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Al-Adwa, 2018
Abdul Kadir v Salima is one of the most important cases on the nature of Muslim marriage and its ... more Abdul Kadir v Salima is one of the most important cases on the nature of Muslim marriage and its legal consequences in British India. Syed Mahmood -the author of the judgment- is considered to have propounded that marriage under Islamic law is a civil contract. The holistic analysis conducted in the paper questions this attribution to Syed Mahmood and argues that he alluded to such a notion for judiciously resolving the issue at litigation, i.e. maintainability of the suit for restitution of conjugal rights in cases of non-payment of dower. It was not his objective to propound an absolute theory of universal application as to the civil nature of marriage. The main contribution of Abdul Kadir v Salima was to facilitate the transplantation process of the suit for restitution of conjugal rights into Anglo-Muhammadan law and augment its religious sanctity by equating it with mutual rights of cohabitation of spouses under Islamic law. Additionally, the paper juxtaposes some of the main propositions of Abdul Kadir v Salima with Pakistani cases to appreciate the points of convergence and divergence.
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Al-Adwa, 2013
The legal cum judicial system in Pakistan is dual in its character which was erected as such in t... more The legal cum judicial system in Pakistan is dual in its character which was erected as such in the colonial period by British government of the Indian Subcontinent. The courts in Pakistan decide cases on the basis of the enacted laws, but when they do not find any enacted law particularly in matters of Personal law they apply the Islamic law provided the parties to the suit are Muslims. This arrangement begs an important question: which books are relied upon by the courts for ascertaining the Islamic legal principles. This paper aims to respond this important question. The paper traces the genealogy of such books and attempts to explore how they have attained such a privileged status despite the fact that there are other authentic works on Islamic law available in market. The authors have carried out an exploratory exercise first to determine which books are more frequently referred to by the courts. On the basis of such an exercise, the paper carries out a genealogical analysis of some of the most important books considering the fact that a full-fledged analysis of the entire source material would not be possible within the space of a single paper.
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Al-Qalam, 2013
This article aims to analyze the contribution made by Tagore Law Lecture series to Islamic legal ... more This article aims to analyze the contribution made by Tagore Law Lecture series to Islamic legal scholarship in British India. These lectures were sponsored by an influential family of Tagore from Calcutta, India. They were organized under the auspices of the Calcutta University and eminent scholars were invited to deliver lectures on various themes of law. In the lecture series, many scholars also delivered lectures on different topics of Islamic law. These delivered lectures were subsequently published as books which attracted admiration during the colonial period and are still viewed with respect in legal fraternity. Considering the fact that it would not be possible to encompass all facets of the lecture series’ contribution to Islamic legal scholarship, the author has selected some books emerged through this process and analyzed them in this article. The article is an attempt to bring forth an important phase of our legal history hitherto unnoticed which has a nexus with our present legal cum judicial system.
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Journal of International Law and Islamic Law, 2018
This paper highlights the contribution of the Lahore High Court (LHC) towards the development of ... more 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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Journal of Islamic Thought and Civilization, 2019
Sayyid Abul Ala Mawdūdi was one of the most renowned Muslim
scholars of the 20th century. In addi... more Sayyid Abul Ala Mawdūdi was one of the most renowned Muslim
scholars of the 20th century. In addition to his portrayal as a gender
insensitive / women unfriendly scholar, he is regarded as one of the founding fathers of political Islam in the modern era for developing a comprehensive political theory of Islam. Mawdūdi was a prolific writer who wrote on a wide array of subjects, although there are some areas in which his contributions have never attracted the academic attention they deserve. With this background, this paper analyzes Mawdūdi’s book Huquq al-Zawjayn written during the British Rāj which has generated debates in the post-colonial legal landscape of Pakistan about some important issues related to women’s rights in marriage. Mawdūdi expressed unflinching disapproval of his contemporary Muslim scholars for their parasitic imitation of the rules of fiqh and their hesitation to have recourse to the divine sources, that is, Qur’ān and Sunnah for ushering solutions of then prevalent religious and social vices. Additionally, he criticized sternly the British Raj and the byproduct of its legal apparatus in the domain of family law, that is, the Anglo-Muhammadan law. Consequently, Mawdūdi presented a model for Muslim personal law inspired by and reconstructed from Qur’ānic verses and sayings of the Holy Prophet (SAW).
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Pakistan Journal of Islamic Research, 2012
Sunni and Shia laws of inheritance are different in their foundational structure as well as detai... more Sunni and Shia laws of inheritance are different in their foundational structure as well as detailed implications, though the both are inspired from the Quranic verses of inheritance. Owing to the fact that Sunnis are in majority in Pakistan, their law of inheritance is relatively well appreciated by lawyers and students of law, while Shia law of inheritance does not have such an advantage. The paper aims to present in a simplified manner the salient features of Shia law of inheritance so that the same may become comprehensible to anyone who is new to this field but interested to develop his skills further. The paper does not explain Sunni law of inheritance in detail and assumes that the reader would be conversant with it. While explaining the salient features of Shia law, it compares them with corresponding features of Sunni law. The paper illustrates how these features are instrumental in conferring different shares to legal heirs in Shia and Sunni schemes of inheritance. There is also an elaboration of the space which is shared by the both legally different traditions of inheritance in Islam.
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Papers by SHAHBAZ A H M A D CHEEMA
scholars of the 20th century. In addition to his portrayal as a gender
insensitive / women unfriendly scholar, he is regarded as one of the founding fathers of political Islam in the modern era for developing a comprehensive political theory of Islam. Mawdūdi was a prolific writer who wrote on a wide array of subjects, although there are some areas in which his contributions have never attracted the academic attention they deserve. With this background, this paper analyzes Mawdūdi’s book Huquq al-Zawjayn written during the British Rāj which has generated debates in the post-colonial legal landscape of Pakistan about some important issues related to women’s rights in marriage. Mawdūdi expressed unflinching disapproval of his contemporary Muslim scholars for their parasitic imitation of the rules of fiqh and their hesitation to have recourse to the divine sources, that is, Qur’ān and Sunnah for ushering solutions of then prevalent religious and social vices. Additionally, he criticized sternly the British Raj and the byproduct of its legal apparatus in the domain of family law, that is, the Anglo-Muhammadan law. Consequently, Mawdūdi presented a model for Muslim personal law inspired by and reconstructed from Qur’ānic verses and sayings of the Holy Prophet (SAW).
scholars of the 20th century. In addition to his portrayal as a gender
insensitive / women unfriendly scholar, he is regarded as one of the founding fathers of political Islam in the modern era for developing a comprehensive political theory of Islam. Mawdūdi was a prolific writer who wrote on a wide array of subjects, although there are some areas in which his contributions have never attracted the academic attention they deserve. With this background, this paper analyzes Mawdūdi’s book Huquq al-Zawjayn written during the British Rāj which has generated debates in the post-colonial legal landscape of Pakistan about some important issues related to women’s rights in marriage. Mawdūdi expressed unflinching disapproval of his contemporary Muslim scholars for their parasitic imitation of the rules of fiqh and their hesitation to have recourse to the divine sources, that is, Qur’ān and Sunnah for ushering solutions of then prevalent religious and social vices. Additionally, he criticized sternly the British Raj and the byproduct of its legal apparatus in the domain of family law, that is, the Anglo-Muhammadan law. Consequently, Mawdūdi presented a model for Muslim personal law inspired by and reconstructed from Qur’ānic verses and sayings of the Holy Prophet (SAW).