26 January 2014
*This post is one in a series of posts regarding divorce (talaq/khula) in Pakistan. This post provides information primarily for “Khula” (a woman’s right of divorce under law). The remaining part of the series shall deal with (1) Procedure of Talaq by a Husband; (2) Property of the Wife after Divorce; and (3) Miscellaneous provisions re harassment by the spouse/family after divorce, overseas parties, drafting the suit for divorce and re-marriage.
Procedure of Divorce in Pakistan – Part I (Khula)
1. Marriage can be dissolved by:
(1) divorce by the husband at his will without any intervention of the Court (i.e. “Talaaq”).
(2) by the mutual consent of the husband and wife and without the need for intervention of the Court;
(3) by the wife in exercise of her contractual right of divorce (i.e “Khula”); or
(4) by the judicial intervention of the Court on the application of either party.
If delegated such right in the Nikkahnama, a wife can divorce the husband, such right is called a Talak-e-Tafweez (i.e delegated powers of divorce). Husband may delegate right to divorce while contracting marriage in the Nikkahnama.
2. “Khula” is:
Khula is the contractual right of a woman to seek a divorce from her husband in Islam for compensation (usually monetary) paid back to the husband from the wife. Khula allows a woman to initiate a divorce through the mutual consent of the husband or a judicial decree.
A woman seeks Khula while man gives a Talaq.
3. What grounds are available to seek Khula:
Under Section 3 of the Dissolution of Muslim Marriages Act, 1939 (the “Act”):
A woman shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:
(i) that the whereabouts of the husband have not been known for a period of four (4) years;
(ii) that the husband has neglected or has filed to provide for her maintenance for a period of two (2) years;
(ii-a) that the husband has taken an additional wife;
(iii) that the husband has been sentenced to imprisonment for a period of seven (7) years or more;
(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three (3) years;
(v) that the husband was impotent at the time of the marriage and continues to be so;
(vi) that the husband has been insane for a period of two (2) years or is suffering from leprosy or a virulent venereal disease;
(vii) that she, having been given in marriage by her father or other guardian before she attained the age of sixteen (16) years, repudiated the marriage before attaining the age of eighteen (18) years:
Provided that the marriage was not consummated;
(viii) that the husband treats her with cruelty (defined under the Act and includes verbal abuse, psychological ill-treatment, physical abuse, cheating, forcing her to lead an immoral life, disposing off of her property, obstructing her religious practise etc);
(ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law.
4. Procedure to obtain Khula:
(1) The wife may enforce her right of Khula if such right is relegated under the marriage contract (the “Nikkahnama”).
(2) If she is not delegated the right of divorce in her Nikahnama, then she could apply for Khula in the Court.
In filing a suit for dissolution of marriage, the Court issues notice to the opposite party i.e. the husband and if he fails to appear after the due process of posting and publication the Court can proceed with the case ex-parte (without him) and pass a decree (an order).
In case where the husband or his representative appear, he is required to file a written statement following which the Court has to fix a date for pre-trial proceedings for reconciliation. If reconciliation fails, the Court will pass decree for dissolution of marriage.
After obtaining Khula decree from the Court, the wife would need to file an application before the Chairman, Arbitration Council/Union Council of that jurisdiction for obtaining the certificate for the dissolution of marriage.
5. Filing of the divorce:
A divorce is filed where the marriage has taken place or where the marriage was registered; i.e. where the defendant is residing. The wife may also file a case at the place where she ordinarily resides.
Disclaimer: The above information is not legal advice but basic guidelines in respect of Khula in Pakistan. Each case is decided/evaluated/prepared in accordance with the individual/unique facts of the case. Nothing provided herein should be used as a substitute for advice of competent counsel.
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Myra Khan Qureshi is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.
Any queries may be directed to lawyereadia@gmail.com
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