26/08/2020
Divorce Laws in Pakistan
Dissolutions of Marriage can be done by way of Talaq or Khula General Information A Muslim Marriage is a contract and can be dissolved like any other contract. It is automatically dissolved on the death of one of the spouses. Other than this, both wife and husband have legal and religious rights to dissolve a marriage. A husband has the unilateral right of talaq, which can never be taken away but can be restricted through the nikahnama. A wife can dissolve her marriage unilaterally only if the right of divorce has been unconditionally delegated to her by the husband in the nikahnama.
Other forms of dissolution of marriage which the wife can use are khula and judicial divorce (including option of puberty). These both have to be sought through the Family Courts.
No matter whether the marriage has been dissolved through talaq, khula or judicial divorce, it is vital that legal procedures be properly followed. Failure to do so can raise doubts about the effectiveness of the divorce and lead to serious legal problems, such as a case of bigamy and zina against a woman who later remarries, or difficulties in settling issues related to the divorce such as past maintenance or claiming deferred haq mehr. The paternity of children can also be disputed.
In addition to any court decree, the woman must make sure she collects her talaqnama certificate from the Union Council and keep it somewhere safe.
Talaq (Divorce)
As per Muslim Personal Law and under section 7 of the Muslim Family Law Ordinance the husband pronounces talaq (oral or by way of Deed of Divorce) and sends written notice by registered post to the Union Council, mentioning address of his ex- wife. Thereafter the concerned union Council sends a copy of the notice to wife by registered post and it constitutes arbitration Council within 30 days of receipt of notice. Once the iddat period (90 days from the date the union council receives the talaq notice) is over, the union council will issue a certificate of Talaq being effective to the husband and wife.
Please note that talaq is not effective until the expiry of iddat period and failure to abide by law wil cause a simple imprisonment for up to one year and/or a fine of up to Rs. 5000/-The Importance of Registered notice of Talaq
A verbal talaq is not recognised by law and the husband’s failure to send written notice to the Union Council makes the talaq ineffective. Even if the Union Council issues a certificate of talaq, if notice was not properly served on the wife, the talaq can be challenged.
This law was originally designed to protect women from a instant and unrecorded divorce. Before 1979 and the introduction of the Zina Ordinance, a woman who was not properly divorced and who later remarried could be punished for bigamy and sentenced up to 7 years (or up to 10 years if she concealed the previous marriage) and only on the complaint of her first husband. However, since 1979, bigamy makes a woman liable to charges of zina which can carry very severe penalty such as death. Therefore, it is vital for a woman to be absolutely clear about her marital status and to have documentary proof that she is properly divorced.
Notice of talaq can be served on a wife (with the Union Council’s permission) through her father, mother, adult brother or sister – but no other relatives. If this is not possible because her whereabouts are not known and notice cannot be served on her through her immediate family, the husband can still serve notice through a newspaper approved by the Union Council.
Sometimes families make the mistake of refusing to receive a registered notification, fearing that it is notice of talaq. This is dangerous because notice can then be served through a newspaper and the talaq will be effective, but the woman will be unaware of her status.
Talaq-i-Tafweez and Mubarat (Mutual Divorce)
In both of these forms of divorce, there is no need to approach the courts, meaning that the marriage can be dissolved rapidly, cheaply and with few procedural problems. In this case both husband and wife may sign a Mutual Divorce Deed and send a written notice under section 8 of the Muslim Family Law Ordinance to the concerned union council. The Union council will adopt the same procedure as of ordinary notice of talaq.
On the other hand if wife is delegated the Right of Divorce in her nikahnama (clause 18), then she is entitled under the law to adopt the same procedure of talaq for a husband as mentioned hereinabove.
Khula (Divorce by Wife through Court)
If the wife is not delegated the right of Divorce in her nikahnama then she would need to apply for Khula. Khula, which literally means ‘untying the knot’, is the dissolution of marriage initiated by the wife and is granted by the court. To apply for Khula the wife would need to file a suit for Khula in the Family Court under the West Pakistan Family Courts Ordinance, on the grounds that she feels she can no long live with her husband “within the limits prescribed by Allah’ and such a statement on oath made in her suit would be sufficient to establish her case for Khula.
Dissolution of Muslim Marriages Act 1939
Judicial khula may also be granted without the husband's consent if the wife is willing to forgo her financial rights.
Grounds for Judicial Divorce
Grounds on which a woman may seek khula include:
Desertion by husband for four years,
Failure to maintain for two years
Husband contracting a polygamous marriage in contravention of established legal procedures,
Husband's imprisonment for seven years,
Husband's failure to perform marital obligations for three years,
Husband's continued impotence from the time of the marriage
Husband's insanity for two years or his serious illness
Wife's exercise of her option of puberty if she was contracted into marriage by any guardian before the age of 16 and repudiates the marriage before the age of 18 (as long as the marriage was not consummated),
Husband's cruelty (including physical or other mistreatment, unequal treatment of co-wives),
Any other ground recognised as valid for the dissolution of marriage under Muslim law
The Family Court will issue decree and send notification to Union Council which proceeds as if it received the notice of Talaq and once the iddat period of over the khula becomes effective.
At the time of filing of Khula suit the wife usually has to return haq mehr and other benefits received from husband as zar-ikhula, gifts received from husband’s family do not have to be returned court decides how much & what is to be returned on the facts of the case wife’s failure to pay zar-i-khula does not render khula ineffective; husband has to file separate suit for recovery of zar-i-khula
