DIVORCES LAWS IN PAKISTAN..Compiled By Sahibzada Mian Muhmmad Ashraf Asmi Advocate

                     

                                  DIVORCES LAWS IN PAKISTAN

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.

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

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.

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 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.

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.

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:

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.”

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.

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.

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.”

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).”

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.