..::Divorce Law in Pakistan

Divorce Law Pakistan – Find comprehensive information about Divorce Law in Pakistan. Divorce or dissolution of marriage is the ending of a marriage before the death of either spouse. It can be contrasted with an annulment, which is a declaration that a marriage is void, though the effects of marriage may be recognized in such unions, such as spousal support or alimony, child custody, child support, and distribution of property.

In some jurisdictions, a divorce must be certified by a court of law, as a legal action is needed to dissolve the prior legal act of marriage. The terms of the divorce are also determined by the court, though they may take into account prenuptial agreements or postnuptial agreements, or simply ratify terms that the spouses have agreed on privately. Often, however, the spouses disagree about the terms of the divorce, which can lead to stressful and expensive litigation. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce, which negotiate mutually acceptable resolution to conflicts. In some other countries, when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non judiciary administrative entity.

After a military take-over in 1999, the Constitution was again suspended. During 2000, discussions continued about possible amendments to the Constitution.

DIVORCE (Talaq / Khula) under Muslim Family Laws

The contract of marriage under the Mohammedan Law may be dissolved in any one of the following ways:

By the husband at his will, without the intervention of a Court;

By mutual consent of the husband and wife, without the intervention of a Court; and

By a judicial decree at the suit of the husband or wife.

The wife cannot divorce herself from her husband without his consent, except under a contract whether made before or after marriage, but she may, in some cases, obtain a divorce by judicial decrees.

DIVORCE BY HUSBAND

Any Mohammedan of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any cause. A Talaq / Divorce may be effected (1) orally (by spoken words) or (2) by a written document called a Talaqnama / Divorce Deed.

Oral Talaq

No particular form of words is prescribed for effecting a Talaq. If the words are express are (saheeh) or well understood as implying divorce no proof of intention is required. If the words are ambiguous (kinayat), the intention must be proved. It is not necessary that the Talaq should be pronounced in the presence of the wife or even addressed to her.

Words of Divorce

The words of divorce must indicate an intention to dissolve the marriage. If they are express (saheeh), e.g., thou are divorced”, I have divorced thee”, or “I divorce my wife forever and render haram for me.”

Shia Law

A divorce must be pronounced orally in the presence of two competent witnesses and a talaq / divorce communicated in writing is not valid unless husband is incapable of pronouncing it orally. Presence of witnesses is a condition precedent of a valid talaq / divorce according to Fiqha Jafria. When both the spouses were governed by the Shia Law, divorce must be pronounced by the husband orally and in the presence of two competent witnesses. Divorce communicated in writing is not valid under Shia Law unless husband was incapable of pronouncing it orally.

According to Muslim Family Laws Ordinance, 1961, to give effect to talaq / divorce there are three requirements: (i) Pronouncement in accordance with Muslim Law; (ii) Service of Notice on Chairman; and (iii) Service of copy of Notice on wife. If any one of such conditions is not satisfied, the Talaq / divorce would not be effected even after 90 days. The procedure is given below:

Section 7 of Muslim Family Laws Ordinance, 1961

Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq / divorce in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.

Whoever contrivance 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.

A Talaq / Divorce 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 reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

If the wife be pregnant at the time of talaq / divorce is pronounced, talaq / divorce shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever be later, ends.

Nothing shall debar a wife whose marriage has been terminated by talaq / divorce effective under this section from remarrying the same husband, without an intervening marriage with a third person unless such termination is for third time so effective.

A divorce not routed through procedure contemplated by Section 7, does not become effective. Therefore talaq / divorce would be effective only after notice of talaq / divorce is given to Chairman and prescribed period of three months has expired. If no notice is given to the chairman, the talaq / divorce would not become effective because according to clause (3) the period is to be calculated from the date of notice to the Chairman and not from the date of the pronouncement of the talaq / divorce. But where the chairman does not constitute an Arbitration Council on receipt of notice or does not call upon the parties to nominate their representative or in any other manner fails to perform his statutory functions, the talaq / divorce will become effective on expiry of ninety days from the date of pronouncement notwithstanding such failure in performance of statutory duties.

Notice under Section 7(1) is to be given to the Chairman of the Union Council of the place where the wife to whom divorce has been pronounced was residing at the time to its pronouncement. The jurisdiction is given by the residence of the wife and not, as under the ordinary law, by the place where the marriage was contracted or where the couple last resided together. It is not even the permanent residence of the wife.

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