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The Child Marriage Restraint Act 1929 has made under-age marriages a penal offence. Under the Act the minimum age of marriage for a male is 18 years whereas the minimum age of marriage for a female is 16 years. Despite the fact that under-age marriages are liable to punishment, such unions are not rendered invalid.
Consent of Wali
According to the Hanafi school, an adult woman may contract her marriage without the consent of a wali.
Registration of Marriages
The Muslim Family Laws Ordinance (MFLO) 1961 introduced reforms regarding registration of marriages, and in default of such registration, penalties of fine and imprisonment have been prescribed. Nevertheless, Muslim marriages are still legal and valid if they are performed according to the requisites of Islam.
MFLO has also introduced some reforms in the law relating to polygamy. Now, a husband must submit an application and pay a prescribed fee to the local union council in order to obtain permission for contracting a polygamous marriage. Thereafter, the chairman of the union council forms an arbitration council with representatives of both husband and wife/wives in order to determine the necessity of the proposed marriage. The application must state whether the husband has obtained consent of the existing wife or wives. Contracting a polygamous marriage without prior consent is subject to penalties of fine and or imprisonment and the husband becomes bound to make immediate payment of dowery to the existing wife or wives. Nonetheless, if the husband has not obtained consent of the existing wife or wives the subsequent marriage remains valid.
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 a 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 late
Failure to Give Notice of Talaq
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 recognised as valid for the dissolution of marriage under Muslim law.