..::What is procedure of Judicial Divorce/Khula by Wife in Pakistan?

The Dissolution of Muslim Marriages Act was passed in order to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie. The Act came into force on the 17th March, 1939 and lays down the following grounds of divorce.

Section 2 of Dissolution of Marriages Act, 1939

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

  • That the whereabouts of the husband have not been known for a period of four year;
  • That the husband has neglected or has failed to provide for her maintenance for a period of two years;
  • That the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961;
  • That the husband has been sentenced to imprisonment for a period of seven years or upwards;
  • That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
  • That the husband was impotent at the time of the marriage and continues to be so;
  • That the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
  • That she, having been given in marriage by her father or other guardian before she attained the age of sixteen years; repudiated the marriage before attaining the age of eighteen year provided that the marriage has not been consummated;
  • That the husband treats her or makes 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
  • On any other ground which is recognized as valid for the dissolution of marriage under Muslim Law.

Provided that:

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 within 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.

Where a marriage is dissolved by a decree of the Family Court, the court shall send by registered post, within seven days of the passing of the decree, a certified copy of the same to the appropriate Chairman, and upon the receipt of such copy, the Chairman shall proceed as if he had received an intimation of talaq / divorce required to be given under this Ordinance and the talaq/ divorce will be effective after 90 days of such intimation and where the decree for dissolution has been obtained by the wife on her suit it is necessary for the wife to independently inform the Chairman, Union Council, about the decree and also to send a notice thereof to the husband in a formal manner.

Section 4: Effect of conversion to another faith

The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage:

Provided that after such renunciation, or conversion, to woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the ground mentioned in Section 2.

Provided further that the provisions of this section shall not apply to a woman converted to Isalm from some other faith who re-embraces her former faith.

OUR LEGAL OPINION AND OBJECTIONS REGARDING JURISDICTION OF UK COURTS IN RESPECT OF DIVORCE AND FINANCIAL CLAIMS OF ANY ONE OF THE PAKISTANI SPOUSE LIVING IN UK

The objections are as follows:

REGARDING JURISDICTION IN RESPECT OF DIVORCE PROCEEDINGS

It is respectfully stated that:

Such decree may be made on any of the following grounds:

That, we observe that this Hon’ble Court has no jurisdiction to adjudicate upon the matter and to grant a Divorce Decree to any Pakistani Muslim spouse living in United Kingdom whether permanently or for a fixed time. As while holding and enjoying nationality of Pakistan by any of the spouse, the Muslim Family Law Ordinance, 1961 (MFLO) will be applicable.  The parties have to, in all circumstances resolve their matter stated in Schedule given at the end of West Pakistan Family Courts Act, 1964 through Family Courts established under Section 3 of the said Act. In addition therewith a marriage which was either solemnized in Pakistan or abroad by Pakistani Citizens according to tenets of Islam, would in all cases be governed by the provisions of Muslim Family Law Ordinance 1961, Dissolution of Muslim Marriages Act, 1939 and West Pakistan Family Courts Act, 1964.

Section 1 (2) of Muslim Family Law Ordinance, 1961, clearly states that itapplies to all Muslim Citizens of Pakistan, wherever they may be. The relevant section is reproduced hereunder for the perusal of this Hon’ble Court:

1. SHORT TITLE, EXTENT, APPLICATION AND COMMENCEMENT:

This Ordinance may be called the Muslim Family Laws Ordinance, 1961.

It extends to whole of Pakistan and applies to all Muslim citizens of Pakistan, wherever they may be.

It shall come into force on such date as the [Federal Government] may, by notification in the official Gazette, appoint in this behalf.

In pursuance of this said provision of law, there are various judgments held by superior Courts of Pakistan under which the Divorce obtained by the citizen of Pakistan abroad are declared as unlawful.

REFERRED JUDGMENTS:

2005 CLC 481- in absence of express relinquishment of Pakistani   Citizenship, both the parties would continue to fall within the ambit of Section 1(2) of MFLO 1961. 2002 CLC 1744, 1998 MLD 85 and 2009 YLR 2341

That, it is important to bring into the kind Notice of this Hon’ble Court that  all the marriages solemnized in Pakistan or abroad by the Pakistani citizens under Muslims Law are mandatorily required under section 5 of the MFLO, 1961 to be registered with the relevant Union Council. The relevant clause of Section 5 is as under:

5. REGISTRATION OF MARRIAGES:

Every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of this Ordinance.

That, the Pakistani citizens are required by law to register their marriage with the relevant Union Council (Statutory Body). In the same way it is also mandatory for them to follow the specific provisions of MFLO 1961 and Family Court Act 1964 in respect of their matter regarding dissolution of marriage including Divorce and Khula. Under Muslim Personal Law, divorce is a right of husband and he has the sole authority to pronounce it without having recourse to any Court proceedings. While Khula is the right of wife, for which she can apply only to a Muslim Judge.

Rule 6 of the West Pakistan Family Courts Rules, 1965 states that the Family Court constituted under Section 3 of the West Pakistan Family Courts Act 1964 shall have the exclusive jurisdiction to try the suit for Dissolution to Marriage. The same principle is held in the following judgment:

Citation Name:2009 YLR 2341 LAHORE-HIGH-COURT, LAHORE

Side Appellant:Brigadier (R.) SAEED ISMAT CHAUDHRY

Side Opponent:JUDGE FAMILY COURT

S.5 Sched.—West Pakistan Family Courts Rules, 1965, Rr. 5 6—Dissolution of Muslim Marriages Act (VIII of 1939), S.2—Suit for dissolution of marriage and recovery of maintenance—Spouses were Muslim holding dual nationality of Pakistan and United Kingdom (U.K.)—Solemnization and registration of marriage of parties in U.K. and its subsequent registration in Pakistan—Application by husband for return of plaint to wife as Family Court at Lahore lacked jurisdiction to entertain such suit—Validity—Marriage of Muslim Pakistani spouses irrespective of place of its solemnization would be governed by provisions of Dissolution of Muslim Marriages Act, 1939, Muslim Family Laws Ordinance, 1961 and West Pakistan Family Courts Act, 1964—Husband had not specifically denied wife’s assertion in plaint about her residence in Pakistan—Husband in his suit pending against wife in Civil Court had stated that both parties were residing in Pakistan—Application of husband was dismissed in circumstances.

 

One comment on “..::What is procedure of Judicial Divorce/Khula by Wife in Pakistan?

  1. salam sir, iam taking khula from my husband. he and his family are very cruel, i cant live with them. my case is in court from last 2 months. now judge wants me to come in court in front of my husband. judge wants to here my statement. i don’t want to live with him anymore. iam worried that what if judge reject my khula? can i re appeal for khula? because i don’t want to go back with my husband. i want to stay with my parents . if judge order me go back to your husband than what can i do? please help me iam so worried. i dont want to go back with my husband. is there any chance than judge reject my khula against my will and tell me to go back with my husband? i want khula .

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