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DIVORCES LAWS IN PAKISTAN..Compiled By Sahibzada Mian Muhmmad Ashraf Asmi Advocate
Sahibzada Mian Muhmmad Ashraf Asmi Advocate
Introduction
A Muslim Marriage is a civil contract which can be executed and dissolved like any other contract, however it is automatically dissolved on the death of either spouses. Additionally spouses legal right to dissolve marriage contract
is also recognized in Islam and hence both are entitled with a religious rights
to dissolve a marriage. Husband has an inalienable legal right of divorce by way pronouncement of Talaq on the other hand wife can only exercise the
right of divorce if the same is granted to her in her marriage
contract or nikkhanama. If in the event
the right of divorce
is not granted to the wife
then she has recourse of filing for khula before the family courts of law to
obtain judicial divorce.
It is critically important to note that whether the marriage has been dissolved through talaq or khula, it must be legally
recognized failing which
serious doubts may arise
about the effectiveness
of the divorce, such as a case of bigamy or 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 dispute. Therefore
as per Pakistani Law it is vital to obtain dissolution of marriage certificate from
concerned government office as a documentary proof of dissolution of marriage. However it is also important to note that as per Islamic scholars, divorce once pronounced by the husband and khula once obtained from the court of law is effective and binding.
Husband’s Right of Divorce
or Talaq and the
Legal procedure
A husband has the unilateral right of Divorce
or talaq and he cannot be alienated from this right but can but can be restricted through the marriage contract also known as nikkahnama. As per Muslim Personal Law and under section 7 of the Muslim Family Law Ordinance the husband can pronounces talaq orally as well as
by way of Deed of Divorce.
Husband
is
duty bound to send written notice by registered
post to the Union Council or concerned government office
in charge for issuance of divorce
certificates. In the said notice the husband must mention the address of his
ex- wife, thereby enabling the government office to issue notices to her by registered post and it shall constitutes arbitration Council within 30 days of receipt of notice for
the purpose of reconciliation and settlement if possible.
This
legislation was introduced to protect women from an instant and
unrecorded divorce. Earlier
cases were recorded where 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 as there was no proof
of dissolution of marriage. Therefore,
this legislation was enacted to protect a woman who re-marries from a frivolous
criminal case and
sentencing. hence 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 permission of concerned government office 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 concerned government office.
It is important to receive a notice from the concerned union council, whereas it has been reported that in some cases families have refused to receive
notices, fearing that it is a notice of talaq and hence talaq will not become
effective. This practice could lead to unfavorable results as service of notice can
be done by way of publication in the newspaper hence refusal to receive
notice of talaq is merely an attempt to act like an ostrich.
Once
the iddat period which is 90 days from the date the concerned government office receives the talaq notice is over, the office 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 will cause a simple imprisonment for up to one year and/or a fine of up to Rs. 5000/-, hence 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 government office is treated as no divorce in law.
However it is also important to note that as per Islamic scholars, divorce
once pronounced by the husband and khula once obtained from the court of law is
effective and binding.
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 government office, however the
government office is duty bound to follow the procedure
of issuance of notices
before issuance of dissolution of marriage
certificate.
Wife’s Right of
Divorce
or Talaq
A wife can dissolve her marriage unilaterally only if the right of divorce has been
unconditionally
delegated to her by the husband in the marriage
contract or the nikahnama. If such right
of divorce is not delegated then in such
circumstances wife can dissolve her marriage by apply for Khula from the Family Courts of Law, which is also known as dissolution of marriage by way of judicial divorce.
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Therefore 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
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made in her suit would be sufficient to establish
her case for Khula.
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Dissolution of Muslim Marriages Act 1939
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Judicial
khula may also be granted without
the husband's consent if the
wife
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is willing to forgo her financial rights.
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Grounds for Judicial Divorce
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Grounds on which a woman may seek
khula include:
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Desertion by husband for
four years,
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Failure
to maintain for
two years
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Husband contracting a polygamous marriage in contravention
of
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established legal procedures,
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Husband's imprisonment
for seven years,
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Husband's failure to perform
marital obligations for three years,
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Husband's continued impotence
from the time of the marriage
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Husband's
insanity for
two years or his serious illness
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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
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consummated),
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Husband's cruelty (including
physical or other mistreatment, unequal
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treatment of
co-wives),
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Any other ground recognised
as valid for the dissolution of marriage
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under Muslim
law
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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
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of over the khula becomes effective.
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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
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recovery of zar-i-khula.
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Commonly Right of Divorce is deleted in
Nikkahnam
It is a common practice that the delegated right of divorce is deleted before the nikahnama is presented
to the bride for signatures. The Law of Pakistan entitles a woman to exercise right of divorce as oppose
to file for Khula before
the Family courts
of Law but as a common practice, the marriage contract is prepared in advance, in manner to defeat the purpose of the legislation. Therefore it is hoped that this article and dissemination of legal information may educate many in our
society to change the practice and secure their legal rights. If Islamic scholars are of the opinion that the said practice is valid and legal, then in such circumstance it is urged that it should be debated in the parliament and necessary
legislation
should be enacted to remove such clauses from the Nikanama. Whereas as of now
the
Divorce Laws of Pakistan states that a woman has a delegated right of divorce and
hence her right should not be removed or deleted without her consent in the nikhanama
prior to obtaining her
signatures and therefore it
is
further urged that all the clauses should be read and understood by the bride before
signing the
Nikanama.
Steps to consider before Divorce in
Islam
Narrated Abdullah ibn Umar:
The Prophet
(peace_be_upon_him) said: Of all
the lawful acts the most detestable to Allah is divorce1.
Islam and Quran has stressed
both partners to live in peace and harmony, however it is a natural process of life that some disagreements between spouses arise during the course of marriage, especially during early years of marriage. It is always encouraged in Islam to resolve such disagreements
by acting fairly and kindly, however if in the event such disagreements cannot be resolved then in such circumstance the following procedure is prescribed in Islam before
termination of marriage.
1. The two parties must try to settle their differences on their own. It is understood by family counselors commonly intervention of third parties, such as parents, siblings,
friends or cousins are common
cause
of non-settlement of disputes. As it is documents
by many family
consultants all over the world that adults are capable of resolving their
disputes amicably by conversing and expressing their grievance. It is
always a process of give and take. Therefore it is recommended that
couple should attempt to talk their difference with the intervention of
others in any form and should always keep in mind that happy life always means give and take.
Narrated AbuHurayrah: The Prophet (peace_be_upon_him) said: Anyone
who incites a
woman against her husband or a slave against his master
is not one of us2.
2. In the unlikely event of non-settlement between the couple, two impartial personalities/ arbitrators, one from the husband’s relatives,
and one from the wife’s relatives,
must
be appointed to try to make
peace and to settle their
differences.
3. If this attempt also fails,
then the husband or
the wife may seek a divorce.
4. In case divorce
is notice served
through the concerned government office,
a reconciliation period of ninty 90 days
time or three months is
1 'Divorce (Kitab Al-Talaq)' of Sunan
Abu-Dawud, No.2173
2 'Divorce (Kitab Al-Talaq)'
of Sunan Abu-Dawud, No.2170
available (except
if the parties have divorced each other
for the third time), also
known as iddat period.
5. The two
parties can reconsider their
views
and reunite during this waiting
time. However, if the above
time limit expires and no reconciliation
occurs, then the
divorce becomes effective and marriage is
terminated.
6. If in the
event the wife is pregnant
then the waiting period is till delivery of her child plus iddat period. Hence divorce
is pronounced by the husband but the same
will not become effective during pregnancy.
Revocation of Divorce
by a Husband
It is commonly noted by us that most families, especially husbands exercise their right of divorce with proper thought process and thereafter approach various counselors and lawyers
for revocation of divorce. The common
problem is that most lawyers
or draftsmen prepare divorce deeds without allowing the opportunity to revoke the divorce
by causing the husband to pronounce triple divorce.
A divorce
can be revoked by the husband without intervening marriage as
long as the same
is
done up till three pronouncements!
Therefore a Divorce
Deed should always be prepared in the form and manner to suggest that it shall be treated
as one single divorce,
if the divorce deed is prepared with a triple divorce
then the same cannot be revoked without intervening marriage and hence the said act should be exercised
with caution.
In most cases the client is not informed of his legal rights of triple divorce and their divorce deed is prepared with triple divorce. Limited scholars
believer that with full knowledge of triple divorce is treated
as single divorce, whereas majority are of the opinion
that ignorance
of basic Islamic Law is no
excuse and therefore pronouncement
of triple divorce is final and binding
until intervening marriage.
Family
Courts (Amendment) Act 2015
The Family Courts (Amendment) Act 2015 (AA of
2015) amends the Family
Courts Act 1964, Act XXXV. These changes speed up the litigation,
reducing the time period in which a defendant may file his reply. Failure to
file reply during this time period will result in the closing of the
defendant’s right of defence, and the family court will decide the case in
favour of the woman according to law. A crucial change allows women to keep up
to 50% of the dower in the case of Khula, where before she was bound to
return/leave the dower.
The following sections have
been amended:
Section 5, Jurisdiction
Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in [Part I of the Schedule].
To “Part I of the Schedule” specified in subsection (1) have been added “9. The personal property and belongings of a wife and a child living with his mother” and “10. Any other matter arising out of the Nikahnama”, extending the jurisdiction of the family courts.
Section 5, Jurisdiction
Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in [Part I of the Schedule].
To “Part I of the Schedule” specified in subsection (1) have been added “9. The personal property and belongings of a wife and a child living with his mother” and “10. Any other matter arising out of the Nikahnama”, extending the jurisdiction of the family courts.
Section
8, Intimation to defendant
(1) When a plaint is presented to a Family Court, it–
(a) [shall] fix a date [* *] of not more than thirty days for the appearance of the defendant;
(b) shall issue summons to the defendant to appear on a date specified therein;
(c) shall, within three days of the presentation of the plaint, send to each defendant, by registered post, acknowledgment due, [or by courier service or by both] a notice of the suit, together with a copy of the plaint, a copy of the Schedule referred to in sub-section (2) of section 7 and copies of the documents and a list of documents referred to in sub-section (3) of the said section.
(1) When a plaint is presented to a Family Court, it–
(a) [shall] fix a date [* *] of not more than thirty days for the appearance of the defendant;
(b) shall issue summons to the defendant to appear on a date specified therein;
(c) shall, within three days of the presentation of the plaint, send to each defendant, by registered post, acknowledgment due, [or by courier service or by both] a notice of the suit, together with a copy of the plaint, a copy of the Schedule referred to in sub-section (2) of section 7 and copies of the documents and a list of documents referred to in sub-section (3) of the said section.
In clause (a) of subsection
(1), “thirty days” has been changed to “fifteen days”. In (c), “three days” has
been changed to “two days” and allowance for email communication has been
added.
Section
9, Written Statement
(1) On the date fixed-under clause (a) of sub-section (1) of section 8, the plaintiff and the defendant shall appear before the Family Court and the defendant shall file his written statement, and attach therewith a list of his witnesses alongwith a precis of the evidence that each witness is expected to give.
Subsection (1) has been changed, and now specifies that “in case the written statement is not filed on that date, the Family Court may, for any sufficient reasons which prevented the defendant from submitting the written statement, allow the defendant to submit the written statement and other documents on the next date which shall not exceed fifteen days from that date.”
Moreover, (5A) has been added after subsection (5):
If the defendant fails to submit the written statement on or before the date under subsection (1), the defence of the defendant shall stand struck off and the Family Court shall decide the case under the law.
(1) On the date fixed-under clause (a) of sub-section (1) of section 8, the plaintiff and the defendant shall appear before the Family Court and the defendant shall file his written statement, and attach therewith a list of his witnesses alongwith a precis of the evidence that each witness is expected to give.
Subsection (1) has been changed, and now specifies that “in case the written statement is not filed on that date, the Family Court may, for any sufficient reasons which prevented the defendant from submitting the written statement, allow the defendant to submit the written statement and other documents on the next date which shall not exceed fifteen days from that date.”
Moreover, (5A) has been added after subsection (5):
If the defendant fails to submit the written statement on or before the date under subsection (1), the defence of the defendant shall stand struck off and the Family Court shall decide the case under the law.
Section
10, Pre-trial proceedings.
(3) At the pre-trial, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible.”
(4) If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for recording of evidence:
(3) At the pre-trial, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible.”
(4) If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for recording of evidence:
Provided that
notwithstanding any decision or judgment of any Court or tribunal, the Family
Court in a suit for dissolution of marriage, if reconciliation fails, shall
pass decree for dissolution of marriage forthwith and shall also restore to the
husband the Haq Mehr received by the wife in consideration of marriage at the
time of marriage.
“Reconciliation” has been removed in subsections (3) and (4), leaving only “compromise” in the description of pre-trial proceedings.
(5) and (6) have been added to specify the proceedings after the Court decrees for the end of marriage, mentioning that in case of khula, the Court “may direct the wife to surrender up to fifty percent of her deferred dower or up to twenty-five percent of her admitted prompt dower to the husband”, and that the Court shall “direct the husband to pay whole or part of the outstanding deferred dower to the wife.”
“Reconciliation” has been removed in subsections (3) and (4), leaving only “compromise” in the description of pre-trial proceedings.
(5) and (6) have been added to specify the proceedings after the Court decrees for the end of marriage, mentioning that in case of khula, the Court “may direct the wife to surrender up to fifty percent of her deferred dower or up to twenty-five percent of her admitted prompt dower to the husband”, and that the Court shall “direct the husband to pay whole or part of the outstanding deferred dower to the wife.”
Section
11, Recording of evidence.
(1) On the date fixed for [39][recording of the evidence] the Family Court shall examine the witnesses produced by the parties in such order as it deems fit.
(1A) has been added after subsection (1), allowing for the use of audio-video recordings as evidence: The Family Court shall record or cause to be recorded, the substance of the statement of a witness or may record or cause to be recorded, the statement of a witness through audio or video recording.
(1) On the date fixed for [39][recording of the evidence] the Family Court shall examine the witnesses produced by the parties in such order as it deems fit.
(1A) has been added after subsection (1), allowing for the use of audio-video recordings as evidence: The Family Court shall record or cause to be recorded, the substance of the statement of a witness or may record or cause to be recorded, the statement of a witness through audio or video recording.
Section
14, Appeals
(2) No appeal shall lie from a decree passed by Family Court–
(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (a) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939;
(b) for dower [or dowry] not exceeding rupees thirty thousand;
(c) for maintenance of rupees one thousand or less per month.
(2) No appeal shall lie from a decree passed by Family Court–
(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (a) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939;
(b) for dower [or dowry] not exceeding rupees thirty thousand;
(c) for maintenance of rupees one thousand or less per month.
The fines of “thirty
thousand” and “one thousand” rupees mentioned in clauses (b) and (c) of
subsection (2) have been replaced by fines of “one hundred thousand” and “five
thousand” rupees respectively. Accordingly, in Section 15, Power of Family Court to summon witnesses, the words
“not exceeding one thousand” have been replaced with “five thousand”.
Section
17-A, Interim order for maintenance.
At any stage of proceedings in a suit for maintenance, the Family Court may pass an interim order for maintenance, whereunder the payment shall be made by the fourteenth of each month, failing which the Court may strike off the defence of the defendant and decree the suit.”
This has been replaced with “17A. Suit for maintenance”, in which the word “may” has been replaced with “shall”, and specifies that the interim maintenance will be fixed on the date of the first appearance of the defendant. It further states that the Court may “may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant”.
In case of failure to pay the maintenance by the fourteen of each month, “the defence of the defendant shall stand struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case.”
Furthermore, the Family Court may “fix an amount of maintenance higher than the amount prayed for in the plaint” and “prescribe the annual increase in the maintenance”. If the Court does not specify such an annual increase, the maintenance “shall automatically stand increased at the rate of ten percent each year.”
At any stage of proceedings in a suit for maintenance, the Family Court may pass an interim order for maintenance, whereunder the payment shall be made by the fourteenth of each month, failing which the Court may strike off the defence of the defendant and decree the suit.”
This has been replaced with “17A. Suit for maintenance”, in which the word “may” has been replaced with “shall”, and specifies that the interim maintenance will be fixed on the date of the first appearance of the defendant. It further states that the Court may “may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant”.
In case of failure to pay the maintenance by the fourteen of each month, “the defence of the defendant shall stand struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case.”
Furthermore, the Family Court may “fix an amount of maintenance higher than the amount prayed for in the plaint” and “prescribe the annual increase in the maintenance”. If the Court does not specify such an annual increase, the maintenance “shall automatically stand increased at the rate of ten percent each year.”
Section
20, Investment of powers of Magistrates on Judges.
Government may invest any Judge of a Family Court with powers of Magistrate First Class to make order for maintenance under section 488 of the Code of Criminal Procedure, 1898.”
Section 20 has been replaced with “20 - Family Court to exercise the powers of the Judicial Magistrate”, which states that a family court “shall be deemed as the Judicial Magistrate of the first class under the Code of Criminal Procedure, 1898 (V of 1898) for taking cognizance and trial of any offence under this Act; the Muslim Family Laws Ordinance, 1961 (VIII of 1961); and, the Child Marriage Restraint Act, 1929 (XIX of 1929)”.
Section 21, Provisions of Muslim Family Laws Ordinance, 1961 not affected. Nothing in this Act shall be deemed to affect any of the provisions of Muslims Family Laws Ordinance, 1961, or the rules made thereunder.
Section 21 is now followed by “21A. Intimation to Arbitration Council”, which states that in case of dissolution of marriage by the Family Court , it is required to “immediately but not later than three days from the decree send by registered post or other means a certified copy of the decree to the concerned Chairman of the Arbitration Council”, and that “upon receipt of the decree, the Chairman shall proceed as if he had received intimation of Talaq under the Muslim Family Laws Ordinance, 1961 (VIII of 1961).”
Government may invest any Judge of a Family Court with powers of Magistrate First Class to make order for maintenance under section 488 of the Code of Criminal Procedure, 1898.”
Section 20 has been replaced with “20 - Family Court to exercise the powers of the Judicial Magistrate”, which states that a family court “shall be deemed as the Judicial Magistrate of the first class under the Code of Criminal Procedure, 1898 (V of 1898) for taking cognizance and trial of any offence under this Act; the Muslim Family Laws Ordinance, 1961 (VIII of 1961); and, the Child Marriage Restraint Act, 1929 (XIX of 1929)”.
Section 21, Provisions of Muslim Family Laws Ordinance, 1961 not affected. Nothing in this Act shall be deemed to affect any of the provisions of Muslims Family Laws Ordinance, 1961, or the rules made thereunder.
Section 21 is now followed by “21A. Intimation to Arbitration Council”, which states that in case of dissolution of marriage by the Family Court , it is required to “immediately but not later than three days from the decree send by registered post or other means a certified copy of the decree to the concerned Chairman of the Arbitration Council”, and that “upon receipt of the decree, the Chairman shall proceed as if he had received intimation of Talaq under the Muslim Family Laws Ordinance, 1961 (VIII of 1961).”
Muslim Family Laws
Ordinance 1961 MUSLIM FAMILY LAWS ORDINANCE, 1961 (VIII OF 1961)
An Ordinance to give effect
to certain recommendations of the commission on marriage and Family Laws.
Whereas it is expedient to give effect to certain recommendation of the
commission on Marriage and Family Laws. Now, therefore in pursuance of the
proclamation of the seventh day of October 1958, and in exercise of all powers
enabling him in this behalf, the President is pleased to make and promulgate
the following Ordinance:- 1. Short title, extent, application and commencement
(1) This Ordinance may be called the Muslim Family Laws Ordinance, 1961. (2) It
extends to whole of Pakistan, and applies to all Muslim citizens of Pakistan,
wherever they may be. (3) It shall come into force on such date as the Federal
Government may, by notification in the official Gazette, appoint in this
behalf. 2. Definition (a) “Arbitration Council” means a body consisting of the
Chairman and a representative of each of the parties to a matter dealt with
this Ordinance: Provided that where any party fails to nominate a
representative within the prescribed time, the body formed without such
representative shall be the Arbitration Council. (b) “Chairman” means the
Chairman of the Union Council or a person appointed by the Federal Government
in the Cantonment areas or by the Provincial Government in other areas or by an
Officer authorised in that behalf by any such Government to discharge the
functions of chairman under Ordinance: Provided that where the Chairman of the
Union Council is a non-Muslim, or he himself wishes to make an application to
the Arbitration Council, or is, owing to illness or any other reason, unable to
discharge the functions of Chairman, the Council shall elect one of its Muslim
members as Chairman for the purposes of this Ordinance. (c) “Prescribed” means
prescribed by rules made under Sch. II. (d) “Union Council” means the Union
Council or the Town or Union Committee constituted under the Basic Democracies
Order, 1959 and having jurisdiction in the matter as prescribed. (e) “Ward”
means a ward within a Union or Town as defined in the aforesaid Order. 3.
Ordinance to override other laws, etc. (1) The provisions of this Ordinance
shall have effect notwithstanding any law, custom or usage, and the
registration of Muslim marriages shall take place only in accordance with these
provisions. (2) For the removal of doubt, it is hereby declared that the
provisions of the Arbitration Act, 1940 (X of 1940), the Code of Civil
Procedure 1908 (Act V of 1908), and any other law regulating the procedure of
Courts shall not apply to any Arbitration Council.
4. Succession.In the event of death of any son or
daughter of the propositus before the opening of succession, the children of
such son or daughter, if any, living at the time the succession opens, shall
per stripes, receive a share equivalent to the share which such son or
daughter, as the case may be, would have received if alive. 5. Registration of
marriage. (1) Every marriage solemnized under Muslim Law shall be registered in
accordance with the provisions of this Ordinance. (2) For the purpose of
registration of marriage under this Ordinance, the Union Council shall grant
licenses to one or more persons, to be called Nikah Registrars, but in no case
shall more than on Nikah Registrar be licensed for any one Ward. (3) Every
marriage not solemnized by the Nikah Registrar shall, for the purpose of
registration under this Ordinance be reported to him by the person who has
solemnized such marriage. (4). Whoever contravenes the provisions of
such-section (3) shall be punishable with simple imprisonment for a term which
may extent to three months, or with fine which may extend to one thousand
rupees, or with both. (5). The form of nikahnama, the registers to be
maintained by Nikah Registrars, the records to be preserved by Union Councils,
the manner in which marriage shall be registered and copies of nikhanama shall
be supplied to parties, and the fees to be charged thereof, shall be such as
may be prescribed. (6) Any person may, on payment of the prescribed fee, if
any, inspect at the office of the Union Council the record preserved under
sub-section (5), or obtain a copy of any entry therein. 6. Polygamy. (1) No
man, during the subsistence of an existing marriage, shall except with the
previous permission in writing of the Arbitration Council, contract another
marriage, nor shall any such marriage contracted without such permission be
registered under this Ordinance. (2) An application for permission under
Sub-section (1) shall be submitted to the Chairman in the prescribed manner
together with the prescribed fee, and shall state reasons for the proposed
marriage, and whether the consent of existing wife or wives has been obtained
thereto. (3) On receipt of the application under Sub-section (3), Chairman
shall ask the applicant and his existing wife or wives each to nominate a
representative, and the Arbitration Council so constituted may, if satisfied
that the proposed marriage is necessary and just, grant, subject to such
condition if any, as may be deemed fit, the permission applied for. (4) In
deciding the application the Arbitration Council shall record its reasons for
the decision and any party may, in the prescribed manner, within the prescribed
period, and on payment of the prescribed fee, prefer an application for
revision, to the Collector concerned and his decision shall be final and shall
not be called in question in any Court. (5) Any man who contracts another
marriage without the permission of the Arbitration Council shall, (a) pay
immediately the entire amount of the dower whether prompt or deferred, due to
the existing wife or wives, which amount, if not so paid, shall be recoverable
as arrears of land revenue; and (b) on conviction upon complaint be punishable
with the simple imprisonment which may extend to one year, or with fine which
may extend to five thousand rupees, or with both. 7. Talaq. (1) Any man who
wishes to divorce his wife shall, as soon as may be after the pronouncement of
talaq in any form whatsoever, give the chairman a notice in writing of his
having done so, and shall supply a copy thereof to the wife. (2) Whoever,
contravenes the provisions of sub-section (1) shall be punishable with simple
imprisonment for a term which may extend to one year, or with fine which may
extend to five thousand rupees, or with both. (3) Save as provided in
sub-section (5) talaq, unless revoked earlier, expressly or otherwise, shall
not be effective until the expiration of ninety days from day on which notice
under subsection (1) is delivered to the Chairman. (4) Within thirty days of
the receipt of notice under Sub-section (1), the Chairman shall constitute an
Arbitration Council for the purpose of bringing about a reconciliation between the
parties, and the Arbitration Council shall take all steps necessary to bring
about such reconciliation. (5) If the wife be pregnant at the time talaq is
pronounced, talaq shall not be effective until the period mentioned in
Sub-section (3) or the pregnancy, whichever later, ends. (6) Nothing shall
debar a wife whose marriage has been terminated by talaq effective under his
section from remarrying the same husband, without an intervening marriage with
a third person, unless such termination is for the third time so effective. 8.
Dissolution of marriage otherwise than by talaq. Where the right to divorce has
been duly delegated to the wife and she wishes to exercise that right, or where
any of the parties to a marriage wishes to dissolves the marriage otherwise
than by talaq the provisions of section 7 shall, mutatis mutandis and so far as
applicable, apply. 9. Maintenance. (1) If any husband fails to maintain his
wife adequately, or where there are more wives than one, fails to maintain them
equitably, the wife, or all or any of the wives, may in addition to seeking any
other legal remedy available apply to the Chairman who shall constitute an
Arbitration Council to determine the matter, and the Arbitration Council may
issue a certificate specifying the amount which shall be paid as maintenance by
the husband. (2) A husband or wife may, in the prescribed manner, within the
prescribed period, and on payment of the prescribed fee, prefer an application
for revision of the certificate, to the Collector concerned and his decision
shall be final and shall not be called in question in any Court. (3) Any amount
payable under Sub-section (1) or, (2) if, not paid in the due time, shall be
recoverable as arrears of land revenue. PUNJAB AMENDMENT In sub-section (2),
the full-stop occurring at the end shall be replaced by a colon and thereafter
the following proviso shall be added, namely: Provided that the Commissioner of
a Division may, on an application made in this behalf and for reasons to be
recorded, transfer an application for revision of the certificate from a
Collector to any other Collector, or to a Director, Local Government, or to an
Additional Commissioner in his Division. [Ord. II of 1975, Section 2]. 10.
Dower.Where no details about the mode of payment of dower are specified in the
nikahnama or the marriage contract, the entire amount of the dower shall be
presumed to be payable on demand. 11. Power to make rules. (1) The Government
may make rules to carry into effect the purposes of this Ordinance. (2) In making
rules under this section, such Government, may provide that a breach of any of
the rules shall be punishable with simple imprisonment which may extend to one
month, or with fine which may extent to two hundred rupees, or with both. (3)
Rules made under this section shall be published in the official Gazette and
shall thereupon have effect as if enacted in this Ordinance. 12. Amendment of
child marriage restraint act, 1929 (xix of 1929). Omitted by Ord. 27 of 1981.
13. Amendment of the dissolution of muslim marriages act, 1939 (viii of 1939).
Omitted by Ord. 27 of 1981.
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