Under traditional Islamic law a bare Talaq/Divorce is deemed to have taken place when the husband pronounces three times ‘I divorce thee’ in the presence of witnesses. . Such a pronouncement has the effect of dissolving the marriage instantly. The wife need not be present when the husband divorces his wife. Sometime the wife because of lack of governing law or as matter of fate just accepts the situation and no regards is paid to the proceedings that must be followed.
However, the Muslim Family Law Ordinance 1961 (MFLO) sets out formal requirements for the recognition of full Talaq/divorces. The provisions of section 7 of the MFLO deals with Talaq/Divorce are as follows:
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.
Whoever contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to 5000 rupees or with both.
Save as provided in subsection (5) Talaq unless revoked earlier, expressly, or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.
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.
If the wife is pregnant at the time of Talaq is pronounced, Talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy, which ever be later, end.
Nothing shall debar a wife whose marriage has been terminated by Talalq effective under this section from re-marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.“
According to the legislation for a valid divorce section 7 of the MFLO imposes three important requirements, Inamul Islam v Hussain Bano PLD 1976 Lahore 1466, namely:
Pronouncement of Talaq
In accordance with Muslim Law – whereby the husband declares three times “I divorce thee” in the presence of witnesses.
Service of the notice on the Chairman
In accordance with section 7(1) the husband must serve a copy of the notice that he has divorced his wife to the Chairman.
The Supreme Court held in Ali Nawaz Gardezi v Lt. Col Muhammad Yusuf PLD 1963 SC 51 that where the husband did not give notice of the talaq to the Chairman he would deemed to have revoked the talaq which was pronounced by the husband.
In Mst Ghulam Fatima v Abdul Qayyum and others PLD 1981 SC 460 the Supreme Court held that “ the talaq had not become effective but stood revoked as no notice under subsection (1) of Section 7 was given by Muhammad Sadiq”
Service of a copy of the notice on the wife.
It is mandatory that the husband serves a copy of the notice of talaq which he serves on the Chairman. In Inamul Islam v Hussain Bano PLD 1976 Lahore 1466 the husband’s contention that sending a copy of the notice of talaq to wife under section 7(1) was not mandatory was rejected. The Court held that service of a copy of the notice to the wife was mandatory requirement and was essential to make talaq effective.
The above was confirmed in Ghualm Nabi v Farruk Latif 1986 SCMR 1350 by the Supreme Court that failure to send a copy of talaq to wife would make the talaq ineffective. The parties had married on 21st June 1982 and the husband had divorce her on 13th July 1982. The Chairman had issued notices; the parties had appeared before him and he recorded their statement on 28th July 1982. The husband counsel had submitted before the Supreme Court that the wife’s appearance before the Chairman should be deemed to be due and sufficient service of notice of talaq to the wife under the provision of law. The Supreme Court held that the husband had not complied with the requirement of service of notice on the wife.
In light of the Ghualm Nabi v Farruk Latif 1986 SCMR 1350 it is mandatory that the husband should supply a copy of notice to wife and husband can not rely on the notice sent, under section 7(4), by the Chairman informing the parties of formation of an Arbitration Council even if the wife attends any hearing in response to the notice from the Chairman.
From the above it is clear that if these conditions were not satisfied the talaq would not become effective even after ninety days.
The Proceeding Rules relating to divorce etc are set out in the West Pakistan Rules under the Muslim Family Laws Ordinance 1961[Gazette of West Pakistan Extraordinary 20th July 1961].
The union Council which shall have jurisdiction in the matter for the purposes of MFLO 1961 Section 2 (d) shall be as follows, namely
In the case of notice of talaq under subsection 1 of the section 7, it shall be Union Council of the Union or Town in which the wife in relation to whom talaq has been pronounced was residing at the time of the pronouncement of talaq
Provided that if at the time of pronouncement of talaq such a wife was not residing in any part of West Pakistan, the Union Council that shall have jurisdiction shall be –
in case such wife was at any time residing with the person pronouncing the talaq in any part of West Pakistan, the Union Council of the Union or Town where such wife so last resided with such a person; and
in any other case, Union Case of the Union or Town where the person pronouncing the talaq is permanently residing in West Pakistan
Where the whereabouts of the wife who is to be supplied a copy of the notice of talaq under sub-section (1) of the Section 7 of the Ordinance, are not known to the husband and cannot, with due diligence, be ascertained by him, he may, if so permitted by the Chairman, give notice of the talaq to the wife through her father mother adult brother or adult sister or if there whereabouts are not known to the husband or cannot with due diligence, be ascertained by him he may with the permission of the Chairman., serve notice of talaq on her by publication in the locality where he last resided with the wife