..::Legal Issues of Family Matters in Pakistan

The issues relating to family matters are wide and varied. The issues include the forms of marriage, divorce matters and guardianship matters. While Muslim marriages are primarily dealt with under Muhammadan law, certain aspects have been legislated for and are identified below.

Provisions of Law:

MARRIAGE

Muslim Family Law Ordinance 1961

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:
  • 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
  • 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.

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.

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.

Child Marriage Restraint Act 1929

2. Definitions

  • (a) “child: means a person who, if a male, is under eighteen years of age, and if a female, is under sixteen years of age;
  • (d) “minor” means person of either sex who is to under eighteen years of age,

DIVORCE/DISSOLUTION OF MARRIAGE

Muslim Family Law Ordinance 1961

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 sub-section 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.

Dissolution of Muslim Marriages Act

2. Grounds for decree for dissolution of marriage:

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on way one or more of the following grounds, namely:

(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated;

(viii) that the husband treats her with cruelty, that is to say:

  • habitually assaults her or makes her- life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
  • associates with women of evil repute or leads an infamous life, or
  • attempts to force her to lead an immoral life, or
  • disposes of her property or prevents her exercising her legal rights over it, or
  • obstructs her in the observance of her religious profession or practice, or
  • if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;

(ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim law, provided that:

  • no decree shall be passed on ground (iii) until the sentence has become final;
  • a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorized agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and
  • before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.

5. Rights to dower not to be affected:

Nothing contained in this Act shall affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage.

Dowry and Bridal Gifts (Restriction) Act, 1976

5. Vesting of dowry, etc., in the bride:

All property given as dowry or bridal gifts and all property given to the bride as a present shall vest absolutely in the bride and her interest in property however derived shall hereafter not be restrictive, conditional or limited.

ILLEGAL/INVALID MARRIAGES

Child Marriage Restraint Act

2. Definitions
:

  • “child marriage” means a marriage to which either of the contracting parties is a child;

4. Punishment of male adult above eighteen years of age marrying a child:

Whoever, being a male above eighteen years of age, contracts child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both.

5. Punishment for solemnizing a child marriage:

Whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both, unless proves that he had reason to believe that marriage was not a child marriage.

6. Punishment for parent or guardian contracting a child marriage:

  • Where a minor contracts a child marriage any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnized, shall be punishable with simple imprisonment which may extend to one month, or with a fine which may extend to one thousand rupees, or with both;

Provided no woman shall be punishable with imprisonment.

  • For the purpose of this section, it shall be presumed, unless and until contrary is proven, that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnized.

7. Imprisonment not to be awarded for offence under section 3:

Notwithstanding anything contained in section 25 of the General Clauses Act, 1897, or section 64 of Pakistan Penal Code, Court sentencing an offender under section 3 shall not be competent to direct default of payment of the fine imposed, he shall undergo only term of imprisonment.

Pakistan Penal Code

493-A. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage:

Every man who deceitfully causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit with him in that belief, shall be punished with rigorous imprisonment for a term which may extend to twenty-five years and shall also he liable to fine.

494. Marrying again during lifetime of husband or wife:

Whoever, having a husband or wife living, marries in any case in which, such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception: This Section does not extend to any person, whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted:

Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

496. Marriage ceremony fraudulently gone through without lawful marriage:

Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine.

496-A. Enticing or taking away or detaining with criminal intent a woman:

Whoever takes or entices away any woman with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any woman, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

POLYGAMY

Muslim Family Law Ordinance 1961

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,
  • 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
  • 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.

CHILD CUSTODY

Guardians and Wards Act 1890

6. Saving of power to appoint in other cases:

In the case of a minor who is not an European British subject, nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property, or both, which is valid by the law to which the minor is the subject.

7. Power of the Court to make order as to guardianship:

  1. Where the Court is satisfied that it is for the welfare of a minor that an order should be made:
    • appointing a guardian of his person or property, or both, or
    • declaring a person to be such a guardian,

the Court may make an order accordingly.
  2. An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
  3. Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.

8. Persons entitled to apply for order:

An order shall not be made under the last foregoing section except on the application of:

  • the person desirous of being, or claiming to be, the guardian of the minor, or
  • any relative or friend of the minor, or
  • the Collector of the district or other local area within which the minor ordinarily resides or in which he has property, or
  • the Collector having authority with respect to the class to which the minor belongs.

19. Guardian not to be appointed by the Court in certain cases:

Nothing in this Chapter shall authorize the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person:

  • of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or
  • subject to the provisions of this Act with respect to European British subjects, of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor, or
  • of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.

21. Capacity of minors to act as guardians:

A minor is incompetent to act as guardian of any minor except his own wife or child or, where he is the managing member of an undivided Hindu family, the wife or child of another minor member of that family.

Pakistan Penal Code

359. Kidnapping:

Kidnapping is of two kinds: Kidnapping from Pakistan and kidnapping from lawful guardianship.

360. Kidnapping from Pakistan, etc.:

Whoever conveys any person beyond the limits of Pakistan without the consent of that person, or of some person legally authorized to consent on behalf of that person is said to kidnap that person from Pakistan.

361. Kidnapping from lawful guardianship:

Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, said to kidnap such minor or person from lawful guardianship.

Explanation: The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception: This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

362. Abduction:

Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

363. Punishment for kidnapping:

Whoever kidnaps any person from Pakistan or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

364. Kidnapping or abducting in order to murder:

Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.

364-A. Kidnapping or abducting a person under the [age of fourteen]:

Whoever kidnaps or abducts any person under the [age of fourteen] in order that such person may be murdered or subjected to grievous hurt, or slavery, or to the lust of any person or may be so disposed of as to be put in danger of being murdered or subjected to grievous hurt, or slavery, or to the lust of any person shall be punished with death or with imprisonment for life or with rigorous imprisonment for a term which may extend to fourteen years and shall not be less than seven years.

365. Kidnapping or abducting with intent secretly and wrongfully to confine person:

Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

 

4 comments on “..::Legal Issues of Family Matters in Pakistan

  1. respected sir my brother marriage has been 9 months ago . My sister in law is with her mother .Now my brother is having a baby boy , she don’t even tell my brother that she had delivered a baby now she is not coming back to home . My brother has fulfilled all her wishes and requirement only the problem is my mother told her to handle home means our home so she said we are not her her responsibility only my brother and their baby is her responsibility after that we dont even said her a word … Now tell my what my brother or we should do ? Because my parents and brother had tried alot to convince her but nothing changed . we also called her uncle they also could not help us . because she is doing job .. reply e soon sir

    Like

    • first try to solve the matter at your family level.
      then you may file a “suit for restitution of conjugal rights” in the family court and you may also file a petition in guardian court for meeting with your child

      Like

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