Divorce & Divorce Law in Pakistan
Divorce, Divorce Law and Khula in Islam and Pakistan
A strong relationship between the husband and wife is an essential criterion for a joyful domestic life. Our religion, Islam, also insists upon the subsistence of a marriage and prescribes that breach of the marriage contract should be avoided.
The matrimonial contract is never intended to be broken, but unfortunate circumstances lead to the marriage contract being broken. It is possible to dissolve such a relationship through a divorce (Talaq).
Divorce (Talaq), according to Islamic law, may be granted by the parties themselves or by a court decree. However, in whatever manner the Divorce (Talaq) is effected it has not been regarded as a rule of life. In Islam, Divorce (Talaq) is considered an exception to the status of marriage.
The Prophet Hazrat Muhammad (PBUH) declared that among the things which have been permitted by law, Divorce (Talaq) is the worst. Divorce (Talaq) being evil, it must be avoided as far as possible. But on some occasions, this evil becomes a necessity, because when the parties to the marriage can’t carry on their life with mutual affection, then it would be better for them to be separated rather than forced to cohabit in a hostile environment.
The basis of Divorce (Talaq) in Islamic law is the inability of the spouses to live together, rather than any specific cause (or guilt of a party) on account of which the parties cannot live together. A Divorce (Talaq) may be either by the act of the husband or by the act of the wife. There are several modes of Divorce (Talaq) under Muslim law, which will be discussed hereafter.
“Divorce”- Meaning in Urdu
The primitive meaning of the word “DIVORCE” in Urdu is “Talaq”. Talaq is basically an Arabic word, used for divorce, which means “to make free or to untie the knot”. In the terminology of the jurists, the word “divorce” or “talaq” signifies the dissolution of marriage or the annulment of its legality by the pronouncement of words or talaq.
Now it is being used in almost every language in the Muslim world. It literally means “to set free”, “to let go”, or to free oneself from any restrictions or ties. According to Muslim Law, it means freedom from the bondage of marriage and from any other kind of bondage. This means the husband’s dissolution of the marriage using the appropriate words. Basically, Talaq is the
husband’s repudiation of marriage according to the law.
Types of Divorce (Talaq)
A Muslim Pakistani man, if inclined to dissolve his matrimonial ties with his wife, can dissolve his marriage by pronouncing Divorce (Talaq) to his wife. A Muslim husband may Divorce (Talaq) his wife by repudiating the marriage without giving any reason. Disowning the wife simply requires the use of words that indicate his intent to do so. This is commonly done through talaq. It is also possible to divorce (Talaq), and Zohar, which is only different in form from Talaq, not in substance.
A wife cannot Divorce (Talaq) the husband of her own accord. She can Divorce (Talaq) the husband only when the husband has delegated such a right to her or under an agreement. Under an agreement, the wife may get a divorce (Talaq) from her husband either by Khula or Mubar’at (mutual consent). Before 1939, a Muslim wife had no right to seek divorce (Talaq) except on the ground of false charges of adultery, insanity, or impotency of the husband. But the Dissolution of Muslim Marriages Act 1939, lays down several other grounds based on which a Muslim wife may get a Divorce (Talaq) decree passed by the order of the court.
Muslim law recognizes two categories of Divorce (Talaq):
1.) Extra judicial Divorce (Talaq), and
2.) Judicial Divorce (Talaq)
The category of extrajudicial Divorce (Talaq) can be further subdivided into three types, namely,
- i) By husband- Talaq, Ila, and Zihar.
- ii) By wife- Talaq-i-Tafweez,
iii) With mutual agreement-Khula and Mubara’at.
Under the Dissolution of Muslim Marriages Act 1939, the wife has the right to give Divorce (Talaq).
DIVORCE (TALAQ) PROCEDURE
If you are a resident of Pakistan and are Muslim by belief and are willing to dissolve your wedding relationship with your wife, you can dissolve your marriage by pronouncing three times the words with a clear intention of Divorce (Talaq) to your wife.
People should know that about triple talaq in one sitting, there is nothing divine. In fact, the Holy Qur’an does not permit it. Moreover, it destroys the future of several women without a plausible reason. Most of the Muslim-majority states have reformed the triple talaq laws and consider triple talaq in one go to be one only.
Divorce Papers or Divorce Deed
You are also under obligation by law to write down a document of divorce in which you declare that you have divorced (Talaq) your wife.
HOW TO REGISTER A DIVORCE (TALAQ) IN PAKISTAN BY A HUSBAND?
As per law, a Pakistani husband who wants to divorce (Talaq) his wife, will require to execute a written Divorce (Talaq) deed. Divorce (Talaq) can be executed by pronouncing 3 Divorce (Talaq) at one sitting or issuing one Divorce (Talaq) each month. Under the laws of Pakistan, no provision bars or prohibits husbands from making 3 Divorce (Talaq) pronouncements in one go. Written Divorce (Talaq) must be executed on a non-judicial stamp paper.
After the written Divorce (Talaq) is executed, the husband is required to send a copy of the Divorce Deed (Talaq Nama) to the wife. What is important to note is that the husband under the Family laws of Pakistan is required to apply with Chairman Union Council within 7 seven days from the date of written Divorce (Talaq) for issuance of the Divorce (Talaq) Effectiveness Certificate.
Divorce Registration Certificate
On receiving such a request, the chairman of the union council shall appoint an arbitration committee to proceed with the application and attempt to make reconciliation between husband and wife. Each party shall receive notice to appear before the Arbitration Committee of the Union Council. In case no reconciliation is effected between parties within 90 days, a Divorce Registration Certificate will be issued and the dissolution of marriage under Pakistani law will be effective.
HOW TO REGISTER A DIVORCE (TALAQ) IN PAKISTAN BY A WIFE?
A Pakistani Muslim wife cannot divorce (Talaq) under the laws of Pakistan unless she has the delegated power of pronouncing divorce (Talaq) given by her husband and that is written in Nikahnama. In that case, the Wife can issue a divorce (Talaq) to the husband. The procedure of Divorce (Talaq) in case of use of delegated authority by the wife shall be the same as provided above. The only difference is that instead of husband-wife shall execute Divorce (Talaq) and request a divorce (Talaq) Certificate from the Chairman, Union Council.
WHAT IS KHULA PROCEDURE IN PAKISTAN BY THE WIFE?
Khula is right if a Muslim wife in Pakistan can be exercised where the husband is not willing to Divorce (Talaq) his wife, but the wife wishes to dissolve the marriage and does not have delegated power of Divorce (Talaq). The procedure for Khula is as follows:
The wife is required to appoint a family lawyer, who shall prepare a Khula case after considering your grievance and file a suit of Khula in Family Court
The wife is required to appear before the Family Court once in order to make a statement. Thereafter, the court will issue a decree of khula.
Upon obtaining the decree of khula, the wife will need to obtain a Divorce Registration Certificate from the Union Council in which the Nikah was registered or where the wife temporarily resides.