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This article provides an overview of the judgments of the Judicial Committee of the Privy Council, the highest court of appeal in the British Empire regarding Islamic Endowments (awqāf). The cases originated from all over the Muslim-populated areas of the British Empire. The first judgment was delivered in 1840 and the last in 1968. An analysis of the judgments shows that the Judicial Committee of the Privy Council made significant developments in Islamic law of Endowments (awqāf), though its decision to declare family endowments invalid was controversial.

For the full text of the judgments mentioned on page 2, please click here. 

The Full Bench of three judges, Shabir Ahmad, B. Z. Kaikaus and Masud Ahmad, held that a Muslim wife is entitled to dissolution of marriage on restoration of dower if the Judge apprehends that parties will not observe the limits of God i.e., harmonious married state as envisaged by Islam will not be possible. For this, a husband’s assent is not necessary.

A baby produced through medical intervention by the sperm and egg of duly wedded couples (without involving a third party) is permissible under Islamic law. However, surrogacy is not allowed because marriage is the only means through which children should be produced under Islamic law. Surrogacy is likely to give rise to innumerable legal problems regarding paternity and maternity of the surrogate children, the relationship between actual children and surrogate children, and inheritance rights.

In a 3-2 decision, the Supreme Court of India declared triple ṭalāq unconstitutional and gave India’s parliament six months “to consider legislation” for handling triple ṭalāq. In its opinion, the Court cited global advances in Islamic family law (in India, called Muslim personal law) in “even theocratic Islamic states” as evidence of the need for reform.  The Court also noted that the Muslim Personal Law (Shariat) Application Act of 1937, which protects the religious freedom of Muslims in India, does not constitutionally protect practices deemed “anti-Qur’anic.” Asserting that triple ṭalāq is such a practice, the Court held that it could not be protected under the Indian Constitution.

Amendments to the Muslim Family Laws Ordinance 1961

In December 2021, the National Assembly in Pakistan introduced two amendments in sections 4 and 7 of the Muslim Family Laws Ordinance 1961. Both these amendments relate to Shia school (Fiqh-e-Jafaria). Under the first amendment a childless widow of a Shia husband is given inheritance right in immovable property. The second amendment clarifies the Shia law on talaq (divorce) by providing that the husband must pronounce Arabic words (seegha) in presence of two witnesses to make divorce effective. It further provides that the pronouncement of talaq (divorce) shall not be effective if it is done “jokingly or under anger, intoxication, insanity, duress or coercion of any kind”.

Both amendments provide that in case of dispute, the parties may have a recourse to “a court of competent jurisdiction or by approaching the Mujtahid-e-Alam from the panel maintained by the Council of Islamic Ideology.” Mujtahid-e-Alam is defined as “a juris-consult, religious scholar or doctor of Shia school of thought well versed with Shariah having international repute and of such recognition.” The decision of Mujtahid-e-Alam shall have a status of an award under the Arbitration Act 1940.

Contributed by Zubair Abbasi.