Muslim Family Laws Ordinance (MFLO) requires a man to give notice & go through a mediation process before divorce. However, it is often not followed, and the divorce is still enforced.
A man is required to pay the Meher at the time of divorce, if he has not paid it earlier. If the woman has the right of divorce in the Nikahnama, she can give a divorce and she does not have to give up her right to Meher.
It is considered the first Talaq if it is the first instance that this has happened. The husband can take her back and would have conjugal rights if the woman agrees to go back to him.
If he does the same a second time, but later changes his mind, a woman can still go back if she agrees. It will be considered a regular marriage where the wife and husband have conjugal rights.
The third time that he pronounces Talaq, it would be considered final. He cannot demand any conjugal rights after that.
Each time the Talaq is pronounced, it is advisable to inform the Union Council, who will then let the husband know that they are in the picture.
Repeated pronouncements of Talaq are not acceptable, as divorce should not be made a mockery of. It is wiser to inform the Union Council, even if the man has not informed them, to ensure that he too takes care next time. Some times a man may use this as a strategy to keep a woman hanging, while he does not inform the Union Council.
Should a woman take/accept advice from a Maulvi in such cases?
The woman or the couple should NEVER refer to a Maulvi for advice in cases of any confusion about divorce unless she knows that the Maulvi understands the law in Pakistan. She should ensure that the Maulvi has not ‘corrupted’ the practice as suggested in Islam. Many Maulvis often advise ‘Halala’, in which a woman is most often exploited. This is both illegal & un-Islamic.
Can a woman report the oral pronouncement of the divorce to the Union Council to ensure the legality of her position as a divorcee?
Yes she can and should. It is important that she safeguard her position.
Is Union Council required by law to take action to ensure the safety of a woman?
The Union Council will not take action apart from informing the husband.
The law requires that the man give notice through the Union Council and go through the divorce procedure. Even though it is not legally correct to do so, but many people accept oral divorce as the law is not enforced, especially in small towns & rural areas.
A husband is required to register the divorce through the Union Council, even if he pronounced it orally. But often men do not do so and it is advisable that the woman should check with Union Council if she does not receive notice of the registration of divorce within the period of a month.
A woman can go to the Union Council and get her divorce registered herself as well for her own safety.
Whether a divorce is pronounced orally or Talaq notice is received through the Union Council, women are advised to immediately refer their case to a lawyer for advice. A husband cannot divorce his wife just before death to prevent her from inheriting her share of the property.
Khula or Talaq-e-Baaen:
A woman has the right to Khula in lieu of giving up her right to Meher. However, she does not need to return any gifts, jewelry, money or anything else she had received at the time of marriage and before the divorce.
The procedure for Khula is: that a woman has to register her Khula in the Panchaet Committee or Union Council. After 90 days the confirmation of Khula is issued.
A woman may seek dissolution in case she is under-age and if the marriage has not been consummated.
Dissolution can also be sought on grounds of cruelty, non-maintenance, impotence, insanity, missing for 4 years, lack of marital obligations, given in marriage by father when under-age and if the marriage has not been consummated.
Divorce/Talaq by the Husband
Under MFLO limited reforms have also been introduced in relation to talaq. Under MFLO a divorcing husband shall, as soon as possible after talaq has been pronounced, in whatever form, give a notice in writing to the chairman of the Union Council. The chairman must then supply a copy of the notice of talaq to the wife. Non-compliance is punishable by imprisonment and/or a fine. Within thirty days of receipt of the notice of talaq, the chairman must constitute an Arbitration Council in order to take steps to bring about reconciliation between the husband and the wife. If and when such attempts to negotiate a reconciliation fail, a talaq that is not revoked in the meantime, either expressly or implicitly, takes effect after the expiry of ninety days from the day on which the notice of repudiation was first delivered to the chairman. If, however, the wife is pregnant at the time of the pronouncement of talaq, the talaq does not take effect until ninety days have elapsed or the end of the pregnancy, whichever is later.
Failure to notify, in the above stated manner, invalidated Talaq until the late 1970s and early 1980s, but introduction of the Zina Ordinance allowed scope for abuse as repudiated wives were left open to charges of zina if their husbands had not followed the MFLO’s notification procedure. Since early 1980s, the practice of the Courts in Pakistan is that they validate a Talaq despite a failure to notify as provided under the MFLO.
Judicial Divorce / 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), and
- Any other ground recognized as valid for the dissolution of marriage under Muslim law.