17 February 2023
By Rehan Piracha
Former judge of the Lahore High Court Malik Mohammad Qayyum, who passed away on Friday in Lahore, authored many significant judgments related to women’s rights in the country.
Qayyum served as a judge of the Lahore High Court from 1988 till 2001 when he resigned after a phone transcript of his was leaked in which he was allegedly approached by government officers of then Prime Minister Nawaz Sharif, to ‘fix’ the judgment in a case before him. The judgment involved former premier and Pakistan People’s Party chairperson Benazir Bhutto.
Despite this controversy, women’s rights lawyers praised the late judge’s empathy towards the rights of women and children in cases before him during his tenure at the high court.
Unknown to many, Malik Mohammad Qayyum was part of the three-member bench that held that an adult Muslim woman was free to marry without the consent of her parents or guardians in a majority verdict given in the Abdul Waheed Vs Asma Jahangir in 1997.
“True enough that runaway marriages are abhorrent and against the norms of our society and must, therefore, be deplored but I have despite my best efforts not been able to discover any principle on the basis of which it can be held that Nikah of sui juris Muslim girl without consent of her Wali would be invalid,” then-Justice Malik Abdul Qayyum wrote in the judgment.
He also held that a judgment of the Federal Shariat Court that ruled a Muslim adult girl could marry without the consent of her Wali, was binding on the courts.
In 1995, a division bench of the Lahore High Court, comprising then-justices Malik Abdul Qayyum and Abdul Hafeez Cheema, handed over custody of a one-year-old child to her divorced mother who was a national of Uzbekistan.
“We are fully recognised that under Islamic law the father is a guardian of both of the person as also the property of the minor but the fact remains that the custody of a minor of tender age and moreso, of female, vests in the mother and on the maternal side. It is only when the mother is found to be disqualified for any reason to retain the custody of the minor that she can be deprived of the right of Hizanat (upbringing). Of course, the paramount consideration is always the welfare of the minor but there is a strong presumption arising under Muslim Laws that it is in the welfare of the minor daughter that she should remain in the custody of the mother. In the present case, the child is one year old and no reason whatsoever has been disclosed by the respondent either in the written statement or even during the course of the argument which would persuade us to deny the mother of the right that vests in her under the Muslim Personal Law,” then-justice Malik Abdul Qayyum wrote in his order in Hina Jilani Vs Sohail Butt case.
The bench also rejected the former husband’s claim that Uzbek had reached a compromise with him in a court in Sialkot and given up custody of the minor daughter.
“So far as the first (contention) is concerned, a bare look at the proceedings before the Civil Court, copies of which have been filed along with the written statement, would clearly show that the proceedings, prima facie speaking were collusive and it is highly doubtlül that the mother who is not conversant either with English or with Urdu had ever appointed an attorney for filing a suit at Sialkot for the recovery of Rs 20,000. The power of attorney which has been allegedly executed by her on this behalf makes interesting reading for, it recites that the parties had agreed to mutual separation on the payment of Rs.20,000 by the husband to the wife at which time it has also been agreed that the mother would give up her right to the custody of the minor. On the basis of this power of attorney, a suit was filed at Sialkot though admittedly neither the mother nor the respondent has ever resided there.”
Hifza Aziz, a senior lawyer with AGHS Legal Aid Cell, remembers Malik Abdul Qayyum as a learned and compassionate judge who provided relief to women, children, and the marginalised in several cases during his tenure at the Lahore High Court.
“Our organisation approached former Justice Qayyum about a case of domestic abuse against the son of a sitting inspector general of Police and he issued notice to the abuser immediately,” she recalled. In another case of stay on divorce proceedings of a brother of a former judge of the high court, Justice Qayyum refused to extend the stay, she added.
“In the case of Saima Waheed, who had married of her own accord, there was great pressure from the clerics and religious parties on the judges hearing the case but Justice Qayyum decided the case on merits,” said Hifza Aziz who used to appear along with late Asma Jahangir in the case before the division bench comprising former justices Ihasanul Haq Chaudhary, Malik Mohammad Qayyum, and Khalil-ur-Rehman Ramday.
Alia Malik, another senior lawyer at AGHS Legal Aid Cell, remembered Qayyum as a compassionate judge who provided relief to women and children in several cases that her organisation pleaded before the high court.
Qayyum was born to former Supreme Court judge Justice Muhammad Akram on Dec 18, 1944. He started his career as a lawyer in 1964. He was elected as secretary of District Bar Association in Lahore ten years later. He was elected a member of the Punjab Bar Council for the period 1984-88. In 1984 he was appointed deputy attorney-general and was elevated as judge of the Lahore High Court on October 26, 1988.
Justice Qayyum tendered his resignation as LHC judge when he, along with Justice Rashid Aziz, was declared as “biased” by the Supreme Court in 2001 in the hearing of a corruption case against former prime minister Benazir Bhutto. Qayyum was elected president of the Supreme Court Bar Association in 2005.
He is the brother of Dr Mian Javed Akram, a senior physician, and former Minister for Commerce Muhammad Pervaiz Malik.