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Petitioner: ANSAR BURNEY VS Respondent: FEDERATION OF PAKISTAN AND OTHERS
Court Name: Federal Shariat Court Judge(s): Aftab Hussain, Malik Ghulam Ali, Zahoorul Haq Title: ANSAR BURNEY vs FEDERATION OF PAKISTAN AND OTHERS Case No.: Shariat Petition No, K-4 of 1982 Date of Judgment:1982-08-09 Reported As: PLD 1983 Federal Shariat Court 73 Result: Petition dismissed
JUDGMENT
JUDGMENT AFTAS HUSSAIN, C. J.-This petition has been filed to challenge the appointment of women as judges or Magistrates for the following reasons :- "(1) They discharge their functions of Qazi without observing pardah which is a clear violation of the Inj unctions of Islam. (2) During the period of the Holy Prophet and his rightful companions the duties of Qazi were never entrusted to females since it appears to be a violation of the Injunctions of Islam. (3) According to Muslim Law the evidence of a woman is half of that of a man and her share in the inheritance is equal to half of that of her brother. The judgment of two ladies only can be equivalent to that of a male. (4) The ladies do not fulfil the qualification of Qazi according to the established principles of Muhammadan Jurisprudence." 2. This petition was fixed at Karachi for preliminary hearing but since the Attorney-General as well as other lawyers wished to be heard, we considered it advisable to hear full arguments from the learned counsel of the petitioner as well as to give a hearing besides the Attorney-General of Pakistan to all those who wished to be heard. The case was thus argued by Mr. G. M. Salem for the petitioner, Mr. Attorney-General, Mr. Anwar Hussain Qadri, Mr. Khalid M. Ishaq, Mrs. Saleema Nasiruddin and Mrs. Rashida Patel, Advocates. After hearing the case, the petition was dismissed by a short order for detailed reasons to be given later. 3. Some of the points need not detain us. It was conceded before us that there is no law or custom or usage having the force of law for or against the seclusion of women. In these circumstances, we are not called upon to go into the question whether Islam allows complete seclusion or partial
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seclusion or whether a woman shall appear in public veiled or unveiled. The argument of the learned counsel for the petitioner that since the evidence of two women is a substitute for the evidence of one man and her share in inheritance is equal to one half of that of her brother, there should be at least two female judges to decide a case, is impossible to accept. If such a concept is given effect to it will follow that no male Qazi sitting alone can decide a civil or criminal case. According to Fiqh, in cases other than that of adultery in which for eye-witnesses are required to prove the offence, at least two male witnesses must prove disputes of property or criminal cases of Hudood and Qisas. If the argument of the learned counsel is taken to its logical conclusion, it should follow that the number of Qazis to decide a particular case should correspond to the number of witnesses required to prove it. A Qazi sitting alone can be allowed to act as a judge in rare cases. Similarly it is not a ground for excluding women from appointment as Qazis that the Holy Prophet or his for successive Caliphs did not appoint any woman as such since the rule is that what is not prohibited by the Holy Qur'an and Sunnah is permitted, and the burden of proof about anything being prohibited is on the person who{{URDU TEXT}} claims it to be so. This is apparent from the maxim {{URDU TEXT}} (Alashbahu wal Nazair by Ibn Nujaim, p. 66). ' We have to see whether there is any express or even implied restriction on the appointment of a female Qazi. If no such restriction can be inferred, the D appointment will be legal in Shariat. 4. It was not denied that there is no specific and direct Injunction in the Qur'an or the Sunnah of the Holy Prophet concerning this matter. There are only the conflicting opinions of the Jurists. The view of Imam Abu Hanifa is that the authority of a Kazi is not valid, unless he possesses the qualifications necessary for a witness. Hedya (Hamilton's), p. 334. This opinion excludes from its ambit all cases of Hudood and Qisas which in his Fiqh do not admit of evidence of women. According to Imam Ibne Jareer Al-Tabri she can be appointed as Qazi in all matters. Hedya by Hamilton p. 334, Sharh Waqaya p. 62, Durrul Mkhtar, Vol. III, p. 253, Jurisprudence by Abdul Rahim, p. 389, Administration of Justice by Alhaj Mohammadullah S. Jung, p. 9, Islam Ka Nizam-i-Adal by Mahmud bin Muhammad, p. 169, Ehkam ul Sultania by Mawardi (Urdu) p. 117, Philosophy of Jurisprudence by Subh Mahmasani, p. 180. According to `Kitabul Qaza' in Fath-ul-Bari, Vol. 13, p. 56, some of the Malakees also favour the opinion of Ibne Jareer. See also Mohalla by Ibn-e-Hazam, Vol. 7, p. 430. Ibne Hazam also supports this view as his opinion is that a female can be a head of the State and Hazrat Umar had appointed a lady as the Inspectress of the market (Mid). Ibn-e-Arabi does not accept the correctness of the Hadith about appointment of a woman by Hazrat Omar to supervise the market. 5. The learned counsel for the petitioner relied upon the view of Imam Shafa'i and Imam Ahmad bin Hanbal who held to the contrary on this proposition. He further submitted that according to ,a tradition correctness of which is undisputed the Holy Prophet said : (There will be no blessings or prosperity for a nation which is ruled by a woman). He further relied upon the Qur'anic verse which, as will be seen, has been interpreted mainly in proof of the suzerainty of men over the women and by some in favour of a man being only a provider for woman. Some traditions were also quoted to which reference will be made at the proper stage. He further quoted the verses from which he inferred Injunctions about the seclusion of women and their appearance in public only with their faces veiled. 6. The learned Attorney-General first made it clear that he was not presenting the Government's case as such but was appearing only for the assistance of the Court in this controversial matter. He referred to the views given by the Council of Islamic Ideology on a query by the Government about the legality of appointment of woman as Qazi. The Council said in its reply that a lady can be appointed a Qazi in all family matters subject to her being over 40 years of age and subject to the
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condition of observance of purdah. He cited a quotation from "Islami Nizam-i-Adalat" by Dr. Tanzilur Rehman, (now Chairman of the Islamic Ideology Council), p. 41, which refers to the opinion of Imam Abu Hanifa in regard to the legality of appointment of a female Qazi in all matters in which her evidence is admissible with which the author agreed. He also referred to the opinion of Ibne Jarir who does not impose any restriction of admissibility of evidence and is of the view that a woman can be appointed a Qazi in all matters. As regards the opinion to the contrary held by Shafies, Hanblies and some Malikies he submitted that this view is based upon the above tradition in which the Holy Prophet condemned the appointment of a female ruler. But he argued that the tradition pertained to the then ruler of Iran and did not lay down the law that the women are disqualified from being elected or appointed rulers. 7. In this connection the learned Attorney-General referred to "Mawahibur Rehmania" and the Fatawa of some Ulema including Maulan Maudoodi issued in favour of Miss Fatima Jinnah's candidature for election to the Presidentship of Pakistan. He submitted that the basis of these Fatawa are the opinions of distinguished scholars like Maulana Ashraf Ali Thanvi and Syed Sulaiman Nadvi. 8. The Attorney-General submitted that he had not been able to find in books on Sharia any limitation as regards age, purdah or that female judges can be appointed only for deciding cases concerning family matters. He said that even as regards the last point the Hanafi view was much more liberal. He also cited a phrase written by Syed Suleman Nadvi in his book page 292 that whenever the companions of the Holy Prophet differed on any matter, they referred the case to the Court of Hazrat Aisha. He said that the use of the word is important since it would show their intention that they wanted a judgment from her. 9. He referred to the book on "purdah" (English) by Maulana Maudoodi in which he expressed his opinion that the rule of purdah could be relaxed in some cases. He read extensively from the "The Introduction to Islam" by Dr. Hamidullah who argued after referring to the obligation of a woman as stated in the Qur'an that when the jurists admit the possibility of their being appointed as judges of tribunals there is no reason why they should not collaborate with men to earn their livelihood and to develop their talents. 10. Mr. Anwar Hussain Qadri referred mostly to verses from the Holy Qur'an and particularly placed reliance on verse 58 of Chapter 1V (and if ye judge between mankind, then ye judge justly). He submitted that this verse is general in scope and the injunction is directed to both men and women and proves the legality of appointment of members of that sex as Qazis. He also submitted that the mother of Muqtadar Billah presided over the High Court of Appeal. 11. Mr. Khalid M. Ishaq submitted that it was not correct that the evidence of a woman is half of the evidence of a male. Referring to verse 6 of Surah Noor about Liam, he submitted that it is clear that the oath of a woman is equal to the testimony of one witness. He referred to a judgment of Qazi Shuraih, in "Akhbarul Quzzat" by Wakeei, Vol. III, page 359 in which he decided a matter on the solitary evidence of a lady because the plaintiff and the defendant both males signified their assent to this procedure. He argued that the phrase was used in the Holy Qur'an in order to lay stress upon the responsibility of a male to provide for the female. He quoted extensively from different books. Similar arguments were given by Mrs. Saleema Nasiruddin and Mrs. Rashida Patel. 12. It has already been observed that the question of purdah is not relevant since there is no law, custom or usage enforceable by law in regard to it. However, in passing, it may be stated that according to Imam Abu D Hanifa, Imam Malik, Imam Shafei and Imam Ahmad Bin Hanbal, the face and hands of a woman are exempted from concealment. This opinion is also attributed in Tirmzi to Ibne Abbas on a report from Saeed bin Jubair. According to a report from Atta, Hazrat Aisha in addition to face and hands also exempted feet from being covered. (Tafseer-Mazhari, Vol. 8, p. 326).
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13. There is a Hadees of the Holy Prophet that a lady of the tribe named Akhsam came to the Prophet in the year of Hajjat ul Widaa and enquired whether she could perform Haj on behalf of her father who was too old to ride an animal. The Prophet answered in the affirmative. Ibn Abbas who reported this tradition said that Fazal who was riding behind the Prophet gazed at the lady who was looking towards him. The Prophet turned Fazal's face to another side. 14. Ibn Qattan inferred from this tradition that since the Prophet did not order that woman to veil or cover her face it follows that is not prohibited to see if there be no apprehension of mischief by enchantment. Tafseer-i-Mazhari, Vol. 8, p. 325. 15. The only question which remains to be considered is the legitimacy of appointment of a woman Qazi according to the Holy Qur'an and the Sunnah of the Holy Prophet (p. b. h.). 16. The first point is about the interpretation of verse 34 of Surah Nisa (Chapter IV), " (Men are incharge of women). This verse furnishes the main plank for the argument in favour of women being subordinate to men. In some of the commentaries the word " (Qawwam) is used in the sense of a ruler or master or a person having an authority, for{{URDU TEXT}} example " {{URDU TEXT}} (Ma'aruful Qur'an) by Mufti Muhammad Shafi. In " (Rooh ul Ma'ani) by Aloosi Vol. V, page 21 the position of man is of{{URDU TEXT}} i,e, sovereign power over the subject. The word 9" (sovereign power) in respect of women is also used in .Ia" (Tafseerul Manar) Maulana Fateh Muhammad of Julundhar translated the said verse in the same meaning i,e, they{{URDU TEXT}} are rulers and have absolute sovereignty over them. 17. In other commentaries, however, the word " (Qawwam) is interpreted as a guardian or head of the family. (See Tadabburul Qur'an by Maulana Amin AhsanMaulana Abul Kalam Azad translated the word as (a manager and a ruler) but it appears from his commentary that he has used the word (ruler) in the sense of the head of the family or a person who manages the affairs of the family. ' The word {{URDU TEXT}} (Sarbarah) is also used to mean a provider. In the Urdu-English Dictionary by John Shakespear one of the meanings of sarbrahi is the act of providing supplies. It is in this sense that{{URDU TEXT}} Maulana Umar Ahmad Usmani interprets it in Fiqh-ul-Qur'an, Vol. III. 18. In support of the diluted meaning Maulana Abul Kalam Azad has referred to the pre-Islamic concept about the members of the other sex being entitled to subservient status only and their duty is to serve the members of the male sex, to obey them and satisfy their desires. The Qur'an has improved this status. For proper appreciation of this view it is necessary to refer to the various concepts in which the role of a woman ranges from subordination to subjugation. 19. In Will Durant's Story of Civilization, Vol. III, pages, 596, 597 is summed up Paul's instructions to his communities which they were required to follow strictly: "Women should keep quiet in Church. They must take a subordinate place. If they want to find out anything they should ask their husbands at home ; for it is disgraceful for a woman to speak in church Man was not made from woman, but woman from man ; and man was not created for woman, but woman for man. That is why she ought to wear upon her head something to symbolize her subjection." (See 1 Corintheans 11:3-16). He (Paul) ordered them to take veil at the risk of their heads being shaved : "If a woman does not wear a veil, let her hair be cut ; but if it is disgraceful for a woman to have her hair cut off or her head shaved, then let her wear a veil." (1 Corintheans 11:6). This was the Judaic and Greek view of woman (Story of Civilization by Will Durant, Vol. III, p. 597). In ancient Israel the husband had a proprietary right over his wife (Encyclopaedia of Religion and
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Ethics, Vol. 5, p. 724). The father could sell his daughter into bond-service (with concubinage) though not to foreigners. He might cause a prodigal son to be stoned to death or a prodigal daughter to be burnt alive (ibid p. 728). 20. The property rights of women were as limited in Talmud as in Eighteenth century England) ; their earnings and the income from their properties belonged to their husbands. (The Age of faith by Will Durant p. 363). In law according to one Rabbi 'a hundred women are equal to only one witness'. 21. Even in the nineteenth century in America (New England) a married woman had no legal existence apart from her husband's. She could not sue, contract, or even execute a will of her own ; her person, estate and wages became her husband's when she took his name (Bonds of Women by Nancy F. Cott. p. 5). The property reforms in most States started after 1839. In England the first Act 'The Married Women's Property Rights Act', was promulgated in 1882. As late as the 18th century Sir William Blackstone published his influential commentaries on the laws of England in which he re-affirmed the legal inferiority of women. He held that women had no legal existence once married ; husband and wife were one person, in law, and that person was their husband. (New Standard Encyclopaedia on 'Women's Rights'), section 37 of the Law of property Act, 1925 declared that a husband and wife shall for all purposes of acquisition of any interest in property under a disposition made or coming into operation after the commencement of this Act, be treated as two persons. Law Reforms (Married Women and Tortfeaser's Act, 1935) declared her to be capable of suing or being sued either in tort or in contract or otherwise, of acquiring, holding and disposing of property and of I rendering herself and being rendered liable in respect of any tort, contract or debt or obligation (section 1). It also declared that what was her separate property or may belong to her or devolve upon her after this Act shall belong to her and may be disposed of by her as if she were a female sole. 22. Among the Greeks the women were left in complete seclusion. She was expected to stay at home, and not allow herself to be seen at a window. Most of her life was spent in the women's quarters at the rear of the house ; no male visitor was ever admitted there nor did she appear when men visited her husband. She could visit her relatives if properly veiled and attended. "The name of a decent woman, like her person, should be shut up in the house" said Plutarch. (Story of Civilization by Will Durant, Vol. II, p. 305. See also Encyclopaedia of Religion an Ethics Vol. 5, p. 735). 23. In Roman Law a woman was considered legal minor under perpetual tutelage of father and husband. (Patria Potestas). 24. The condition of women among the Hindus is well known to persons residing in the sub- continent. Her position was no better than that of a slave and she had to be Safi (die by burning) on the cremation of her husband. 25. In Japan after the coming of Confucian and Buddhist teachings woman's duty became that of obedience to her father, her husband and her son ; when married her property became the possession of her new family. (Encyclopaedia of Ethics and Religion, Vol. 5, p. 740). 26. Thus generally the women were not considered economic individual. On the other hand if they had property or earned wages or were made to earn wages, their income was spent only to provide economic relief to their husbands. Their position was of subjugated individuals. 27. Islam on the other hand placed woman and man both on the same footing in economic independence, property rights and legal process. She might follow any legitimate profession, keep her earnings, inherit property and dispose of her belongings at will (Q. 4:32) (See The Age of faith by Will Durant p. 180). 28. The commentaries in which the concept of dominion or sovereignty is advanced appear to be based upon the old conceptual trends.
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29. The root word of "qawwam" in Arabic is (Qawwma) the words (Qawwma ala) will, therefore means to provide someone's needs, to support someone or furnish someone with the means of subsistence. (Qawwma ala) will, therefore, mean a provider, a supporter or furnisher for another with the means of subsistence. It also means a manager, care-taker, custodian or guardian. It is for this reason that Abdullah Yousaf Ali has translated the word as meaning protector. Pickthal has translated it as incharge, which is the same thing as caretaker or guardian. Arberry interprets it as one who manages the affairs of women. 30. This sense is more in accord with the subsequent language of this verse. The reason is that men spend their property for the support of women. Abdul Aziz Jaweesh says Al Islam Deen ul Fitrata Wal Hurriya, p. 98 that the superiority if any is not for natural proficiency in one and deficiency in another but it is only on account of the liability to maintain. It must follow that one who does not maintain his wife should not be Qawwam. And this is exactly what is said in Al-Bahr ul Moheet by Abu Hayyan Undlusi with reference to Qurtabi (p. 239). 31. The sense of a provider and a protector is very much included in the verse. By calling male a soverign, the concept of his having full dominion over her life and property both will have to be imported which can not be in accordance with the Qur'anic injunctions in which the life and property of all including that of women is sacrosanct. On the other hand Shariah provides that even if the woman is wealthy enough or wealthier than her husband, the latter is under an obligation to provide for her maintenance keeping in view his own means as well as the status of woman in the society. The excellence of one over the other is in relation to the physical strength and the will and determination to fight and to protect "Because Allah has given the one more (strength) than The other" connotes this excellence in strength. The word strength includes physical strength. They are for such reasons in a better position to safeguard the interest of women. 32. I think the best commentary of this verse is in the tradition of the Holy Prophet (PBH) : {{URDU TEXT}}(Every one of you is a guardian and is responsible for his charges. The Imam (ruler) of the people is a guardian and is responsible for his charge a man is the guardian of his family (household) and is responsible for his charge ; a woman is the guardian of her husband's home and of his children and is responsible for them ; and the slave of a man is a guardian of his master's property and is responsible for it), Every one of you is a guardian and responsible for his charges (Bukhari). means protector, custodian or a person who is responsible for the development of his protected thing and thus he is required to be just and to look after its interests. (Fatbul Bari, Vol. 13 page 112). 33.It may be clarified that the word which is the root word of{{URDU TEXT}} and{{URDU TEXT}} means to graze, to tend, to take care of, to guard, to protect means shepherd, herdsman, guardian, keeper, protector. in that sense carries the meaning of 'herd' or 'flock'. The functions of a shepherd are firstly to graze or tend the herd which makes him undertake the responsibility of a provider, secondly to protect it from the attacks of wild animals which gives it a sense of protector and thirdly to see that a member of the flock does not stray from the path. In that case he can also exercise his authority of retribution. Primarily the shepherd uses all means of love for keeping the members of the flock from straying. It is only as a last resort that he may give them a slight beating. 34.The meaning of the verse which may now be reproduced fully from Abdullah Yousaf Ali's commentary on the Qur'an will bear out this sense of a shepherd and it appears that a part of this Hadith is really a commentary of this verse "Men are the protectors And maintainers of women. Because Allah has given The one more (strength)
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Than the other; and because They support them From their means. Therefore the righteous women Are devoutly obedient, and guard In (the husband's) absence What Allah would have them guard." (Verse 4:34) It also appears from Hadith that the mantle of shepherd hood is not for the male only ; a female also may be a shepherdess. She enjoys that role over her children. In a case where she is unmarried or a widow or her husband clews her or there is separation between the spouses, she becomes the Qawwam or guardian or mentor of those she has to look after. The verse deals with family in which the man and the wife are the two principal characters but in such a normal family also her position is that of second in command and in her children she has a flock to be shephered by her. In these circumstances it will be doing violence to the language of the verse to interpret it in the sense that a man always holds some dominating position over the other sex. This is clarified by the Hadis. 35.The same result can be obtained from a reference to Q. 2:223, "Your women are a tilth for you (to cultivate)". This verse has been generally interpreted to be against the commission of an unnatural sexual act with one's wife. There is, however, no justification for confining it to that matter. It also indicates how a person is to act towards or to treat his wife. The treatment should be of a farmer handling and managing his land as lovingly as possible and looking after it with such care and caution which may enable him to get the best produce out of it. Maulana Amin Ahsan Islahi has partly referred to this point while commenting upon this verse in Tadabbarul Qur'an. He says :- "it is a common desire on the part of a tiller of the soil that he should obtain the best crop from his land and for this purpose to plough at the right time, to water it and to give manure to it according to need, and see that it remains protected from seasonal calamity and the depredation of beasts of prey, grazing animals, birds, enemies and thieves. When he looks towards it, he will be gratified and pleased by its verdure, and freshness and when the time comes, he may reap excessive crop?' 36.The simile is very apt and is suggestive of the loving treatment to which a wife is entitled. 37.The position of a "Qawwam", guardian, manager, maintainer, provider, in whatever sense it is interpreted,…
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