Divorce Procedure in Pakistan
The dissolution of marriage can be done via Talaq, Khula or divorce from a Family Court. General Information: An Islamic marriage is a contract and can be dissolved like any other contract. It is automatically dissolved on the death of one of the spouses. Apart from this, women and men have the legal and religious right to dissolve a marriage. A spouse has the unilateral right to talaq, which can never be removed but limited by the Nikahnama. A woman can only unilaterally terminate her marriage if the right of divorce has been unconditionally transferred to her by husband in Nikkah Nama. A Marriage may also be dissolved with mutual consent which is called Talaq e Mubbarat.
Other forms of marriage dissolution that a woman may use are Khula and judicial divorce. Both must be sought by the Family Courts.
Whether the marriage has been solved through talaq, khula or legal separation, it is essential that the legal process is followed correctly. Failure to do so may raise doubts as to the effectiveness of the divorce may lead to serious legal problems, such as a case of bigamy and Zina against a woman who remarries later, or problems in solving the problems related to the divorce such as alimony in the past or a deferred application Haq Mehr. The paternity of children can also be challenged.
In addition to a judgment, the woman must ensure that she retrieves her Talaq Nama certificate from concern Union Council and keep it in a safe place.
TALAQ (DIVORCE) PROCEDURE
According to Section 7 of the Muslim Family Laws Ordinance, 1961 husband pronounces the talaq (oral or divorce deed) and sends a Notice through a registered AD/Courier to the Union Council along with a copy of Nikkah Nama and divorce deed if any and also copy of Notice and original divorce deed to his wife. Then Union Council upon receiving the notice by Husband issues the notice to wife through registered mail. It forms an arbitration committee i.e called arbitration council within 30 days of receiving the notice by the husband. The Chairman Arbitration Council / Union Council issues the Computerized Divorce effectiveness Certificate as soon as the iddat period of 90 days (from the date, union council receives the talaq notice by husband) is completed.
If the wife is pregnant at the time Talaq is pronounced, Talaq shall not be effective until the pregnancy ends.
Do remember, to notify the Chairman arbitration Council regarding divorce is mandatory as non-compliance may result in a sentence of up to one-year imprisonment and / or a fine of upto Rs. 5000 /-.
Oral Talaq / Divorce Procedure
An oral talaq is not legally recognized until the husband informed the Union Council under section 7 of Muslim Family Laws Ordinance, 1961. Even if the Government issues a Talaq certificate, the talaq can be disputed, if the notice to concern Union Council has not been properly served upon the wife.
This law was originally intended to protect women rights against immediate and unregistered divorce. Before 1979 and the introduction of the Zina Regulation, a woman who was not divorced properly and who would later remarry could be punished for bigamy and sentenced to a maximum of 7 years (or a maximum of 10 years if she had hidden the previous marriage) only on her first husband’s complaint. However, since 1979, bigamy has held a woman liable for Zina’s charges, which can lead to very severe penalties such as death. It is therefore essential that a woman clearly indicates her marital status and has evidence of her divorce.
Talaq-i-Tafweez or Mubarat (mutual divorce)
With this form of divorce, there is no need to go to court, which means that the marriage can be dissolved quickly, at a lower cost and with fewer procedural problems. In this case, the husband and wife can sign a divorce deed and send a written notification in accordance with section 7 of the Muslim Family Laws Ordinance, 1961 to the relevant union council. The Union council / Arbitration Council will adopt the same procedure as in the ordinary procedure of the talaq.
On the other hand, if the woman has the right to divorce in her Nikahnama (clause 18), she is permitted by law to adopt the same talaq procedure for a husband as mentioned above.
Khula Divorce Procedure through Family Court
If the woman does not have the right to divorce in her Nikahnama, she may apply for dissolution of marriage, Khula before Family Court, which literally means “loosen the knot”, is the dissolution of the marriage initiated by the woman and granted by the court. A woman should file a suit before the family court on the grounds that she no longer thought she could live with her husband “within the limits prescribed by Allah “, etc. a statement on the oath would be enough to confirm his plea in favour of Khula.
Grounds for Judicial Divorce
The Grounds for Dissolution of Marriage are :
- Abandoned by the spouse for four years,
- No maintenance for two years
- The spouse entered into a polygamous marriage in violation of the applicable legal procedures,
- Imprisonment of the spouse for seven years,
- Failure by the spouse to comply with his marital obligations for three years,
- Constant impotence of the spouse since marriage
- The madness of the spouse for two years or his serious illness
- Exercise by the woman of her puberty option if a legal guardian has entered into a marriage before the age of 16 and renounces the marriage before the age of 18 (as long as the marriage has not taken place),
- Marital cruelty (including physical or other abuse, unequal treatment of co-women),
- Any other ground recognized as valid for the dissolution of the marriage according to Islamic law.
The family court issues a decree and sends a notification to the Union Council, which will continue as if it had received the notice of Talaq from husband and after 90 days union council / Arbitration Council shall issue the Divorce effectiveness Certificate.
Return of Haq Mehar in Khula case
In case of dissolution of marriage through Khula, Family Court may direct the wife to surrendered up to fifty percent of her deferred Dower or up to twenty-five percent of her admitted prompt dower to the husband but gifts received from her husband’s family may not be returned. The court decides the amount be reimbursed based on the facts of the case.