4 February 2014
Procedure of Divorce in Pakistan – Part II (Divorce)
Gist: Three (3) pronouncements of talaq in front of witnesses, make it effective. However, under the law, it is mandatory to issue, as soon as possible, a notice to the Chairman of the Union Council and a copy of such notice to the wife. Ninety (90) days from the delivery of such notice, the talaq is deemed effective. Not following such procedure results in the revocation of the talaq by the husband and thus, ineffective.
1. Pronouncement of divorce three (3) times:
There remains much confusion around whether three (3) pronouncements of “talaq” in one sitting, by the husband, are valid or not under the laws of Pakistan. The question resonates across households, television dramas and awareness programs. Under the traditional laws of Islam, a divorce is deemed to have taken place when a husband pronounces three (3) times “main tumhain talaq deta hoon” or “I divorce you” in the presence of witnesses. Such a pronouncement has the effect of dissolving the marriage instantly. Moreover, the wife need not be present when the husband divorces his wife.
The law in Pakistan has however, standardized this process to provide legitimacy and clarity to the proceedings.
Under Section 7 of the Muslim Family Law Ordinance, 1961, the formal requirements for the recognition of a talaq (divorce) are as follows:
(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the chairman (of the Union Council) a notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever, contravenes 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.
(3) Save as provided in sub-section (5) talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from day on which notice under sub-section (1) is delivered to the Chairman.
(4) 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 a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.
Firstly, if no notice is given to the Chairman, the talaq, albeit effective, is deemed to be revoked by the husband (see, Ali Nawaz Gardezi vs. Lt. Col Muhammad Yusuf, PLD 1963 SC 51 and Ghulam Fatima vs. Abdul Qayyum, PLD 1981 SC 460.)
Secondly, it is mandatory that the husband issue a copy of the notice to the wife, otherwise the talaq (divorce) would be ineffective (see, Ghulam Nabi vs Farruk Latif, 1986 SCMR 1350 and Inamul Islam vs. Hussain Bano, PLD 1976 Lahore 1466).
If the above conditions are fulfilled, the talaq (divorce) becomes effective ninety (90) days from the notice.
2. Revocation of divorce:
If the notice of talaq (divorce) has been sent, it can be revoked before the expiry of ninety (90) days from the date of delivery. In the event of such revocation, the talaq (divorce) becomes ineffective.
3. Divorce by mutual consent:
A husband and wife can dissolve their marriage through a mutual agreement (“Talaq-e-Mubarat” meaning ‘obtaining release from each other’).
In such case, the offer for separation may proceed either from the wife or the husband and the dissolution is complete as soon as the other party accepts such offer.
Disclaimer: The above information is not legal advice but basic guidelines in respect of divorce 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.
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.
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