6 February 2014
Procedure of Divorce in Pakistan – Part III (Miscellaneous)
1. Divorce in Shia Law:
A divorce must be pronounced orally in the presence of two (2) competent witnesses and a talaq / divorce communicated in writing is not valid unless husband is incapable of pronouncing it orally. Presence of witnesses is a condition precedent of a valid talaq / divorce according to Fiqha Jafria (Shia Faction).
2. Important point re verbal divorce (as detailed in my blogpost dated 4 February 2014 (Procedure of Divorce in Pakistan – Part II (Divorce))):
A verbal divorce is not recognized by law and the husband’s failure to send written notice to the government office is treated as no divorce in law. However it is also important to note that as per Islamic scholars, divorce once pronounced by the husband and khula once obtained from the court of law is effective and binding.
3. Important clauses to retain in the Nikkahnama (reference picture* attached below):
It is standard practice to slash Clause 18 in the Nikkahnama which reads (with English translation) as follows:
18. Aya shohar ne talaq ka haq biwi ko tafweez kardiya hai
(Has the husband granted the right of divorce to the wife)
Agar kardiya hai tou konsi sharayat ke tehet
(if he has, then under what conditions is such right granted)
The above Clause pertains to the wife’s right of divorce and should be retained in the Nikkahnama. Moreover, Clause 19 gives the wife the right to put conditions on the husband’s right of divorce too.
4. Rights of the wife after divorce:
(1) The wife is entitled to receive her complete haq mehr (the amount agreed during the signing of the Nikkahnama) and any bridal gifts given to her as jahez (dowry) or by her husband’s family. In respect of Khula, the wife is required to forego her claim to the haq mehr.
(2) Upon the dissolution the wife is also entitled to claim deferred haq mehr and maintenance (in an amount decided by the courts) during the period of Iddat (three (3) month waiting period after which the divorce is final).
5. The next step, after the husband sends a notice to the Union Council and a copy to the wife, is that within thirty (30) days of receipt of the notice by the Chairman (Union Council), the Chairman shall constitute an arbitration council for the purpose of bringing about reconciliation between the parties. If such reconciliation proceeds, after expiry of ninety (90) days, fail, then divorce shall take effect.
6. If the whereabouts of a husband are unknown for a period of four (4) years then the wife can, under the Dissolution of Muslim Marriage Act, 1939, end the marriage.
7. During the proceedings or after the divorce if any party feels threatened by the other, the threatened party may file a complaint at the police station of that area, against the other.
8. For the sake of evidence and to avoid future complications, both parties are advised to collect their divorce certificate (Talaqnama) from the Union Council and keep it safe.
*reference picture as per Paragraph 3 (Important Clauses of Nikkahnama) above:
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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