A wife can divorce on her own given that she has been granted the right to Divorce (delegated power of divorce) at the time of the Nikah. This right is given by Husband at the time of Nikah.You are best advised to refer to part 18 (Column 18) of the standard Nikah Nama which is signed in Pakistan.
A common query we often receive is if you need to file for Divorce Under Column 18 whether it can done at the local Family Courts.The answer is no, the Divorce Deed is sent as per Section 7 & 8 of the MFLO 1961 to the Husband by the Wife and a copy is sent to the local Union Council.To decide which Union Council it needs to be, please pay attention to the paragraphs below and also read this link on our website which has the West Pakistan Rules Under the Muslim Family Laws Ordinance 1961 and relevant cases in the end.
The right granted under Section 18 of the nikahnama refers to Section 8 of the Muslim Family Laws Ordinance 1961. When invoked, it allows a woman to divorce her husband using Section 7 of the Muslim Family Laws Ordinance 1961, which defines the procedure for talaq (divorce). As a result it allows a woman institute divorce proceedings while retaining her rights over the dower amount, or haq meher, agreed upon by the contracting parties and recorded on the nikahnama.
The clause is of vital significance since a woman who does not have the right of divorce under Section 18 of the nikahnama must resort to pleading for khula (dissolution of marriage), a procedure during which she loses her claim over the dower, alimony or maintenance.
The usual procedure for divorce (as opposed to khula) is that under Section 7 of the Muslim Family Laws Ordinance 1961, the husband presents a notice to the nazim of the relevant union council. If the nazim’s efforts to bring about reconciliation fail, a certificate of divorce is issued within 90 days. Section 8 of the same ordinance dictates an identical procedure for women who have the right of divorce under Section 18 of the nikahnama.
The paragraphs below will discuss some major cases in this area of law :
In the case of Muhammad Afzal Khan v. Chairman Arbitration Council (2018 CLC 1125 Islamabad), the matter concerned the issuance of a ‘Divorce Effective Certificate’ in a unique circumstance. The daughter of the petitioner had been married to the respondent, and she had the right of delegated divorce in her favor pursuant to Column 18 of the Nikahnama. During her lifetime, the daughter exercised her right and issued a divorce to the respondent, with a copy of the divorce notice sent to the Arbitration Council.
However, the Arbitration Council declined to issue the ‘Divorce Effective Certificate’ on the grounds that the daughter of the petitioner did not appear before the council due to her death. The High Court found that the purpose of the Arbitration Council was to hold reconciliation proceedings between spouses, and if reconciliation was not achieved, the Chairman of the Arbitration Council had to issue the ‘Certificate of Effectiveness of Talaaq’ after the expiry of 90 days.
It was clarified that it was the prerogative and authority of the person who had filed the divorce application, along with notices of divorce, to withdraw it before the 90-day period elapsed. If the application was not withdrawn by the applicant (whether husband or wife), the Chairman of the Arbitration Council could not refuse to issue the “Certificate of Effectiveness of Talaaq,” especially when the other party did not appear for reconciliation proceedings.
In cases where the wife (having the delegated right of divorce) approached the Chairman of the Arbitration Council for the issuance of the ‘Certificate of Effectiveness of Talaaq,’ and notices were issued to the other party, but the other party failed to appear before the Council, and in the meanwhile, the applicant (wife) or the person who applied passed away, it could only be presumed that the executor of the notices of Talaaq had the intention to pronounce Talaaq. Therefore, the High Court directed the Arbitration Council to issue the ‘Certificate of Effectiveness’ of Talaaq in the name of the deceased daughter of the petitioner when the 90-day period had completed from the date of filing the application.
In the case of Ali Abbas Khan v. Mst. Palwasha Khan (2010 YLR 1632 Islamabad), the matter in question pertained to the dissolution of marriage and the exercise of the power of Talaq-e-Tafweez, which is the delegation of the right to divorce. The key issue revolved around the interpretation of the rights mentioned in Column 18 of the Nikahnama.
The respondent, who was the wife, had sent a divorce deed to the petitioner, her husband, based on the purported exercise of the right of divorce allegedly delegated to her by the husband. She also sent a copy of the divorce deed to the Chairman Arbitration Council, along with a notice under Section 8 of the Muslim Family Laws Ordinance, 1961, requesting the constitution of an Arbitration Council.
However, the husband contested the claim, asserting that he had never given any right of divorce to his wife, nor were any such powers endorsed in Column 18 of the Nikahnama. He further argued that the order rendered by the Chairman Arbitration Council was unlawful and lacked authority. The dispute centered on whether the words “Shary Haqooq” as mentioned in Column 18 of the Nikahnama implied that the husband had delegated the right of divorce to his wife.
The Islamabad High Court, in its judgment, clarified that it was not a Sharia right of a wedded woman to initiate a divorce without a specific delegation of such power by the husband. The counsel for the respondent wife failed to demonstrate that a woman had the inherent right to divorce herself as a Sharia right. The words mentioned in Column 18 of the Nikahnama did not confer any power on the wife to exercise the right of Talaq-e-Tafweez (delegated divorce).
The court emphasized that no such power had been delegated by the husband to the wife at the time of the Nikah. It reasoned that if words like those in Column 18 were considered a basis for Talaq-e-Tafweez, then any statement against Column 18 could be presumed as Talaq-e-Tafweez. However, the husband had explicitly denied granting such power to his wife during the Nikah ceremony.
As a result, the divorce deed executed by the wife was considered to be without a legal basis and held to have no legal value. Additionally, the order issued by the Chairman of the Arbitration Council was found to be not in accordance with the law and was set aside.
In summary, the case affirmed that the delegation of the right to divorce must be specific and clearly established, and mere mention of certain words in the Nikahnama, such as “Shary Haqooq,” does not automatically confer such a right to the wife without explicit delegation by the husband.
Further points on 2010 Y L R 1632 :
- The petitioner, in his appeal, argued that the divorce was executed without his delegation of the right to divorce (Talaq-e-Tafweez) to his wife as per the entries in Column 18 of the Nikahnama. He also claimed that the Chairman Arbitration Council’s order was unlawful and without authority.
- The court held that it is not a Sharia right for a wedded woman to divorce herself without a specific delegation of such power by the husband. The counsel for the wife failed to establish that a woman could divorce herself as a Sharia right.
- The words mentioned in Column 18 of the Nikahnama did not grant any power to the wife to exercise the right of Talaq-e-Tafweez. The court found that no such power had been delegated by the husband to the wife during the Nikah ceremony.
- The court emphasized that if such words were allowed to be considered as conferring the right of Talaq-e-Tafweez, then anything mentioned against Column 18 would be presumed as such a right, which was not the case. The petitioner had explicitly denied granting such power to his wife.
- Consequently, the divorce deed executed by the wife was considered without a legal basis and had no legal value. The Chairman Arbitration Council’s order was also found to be not in accordance with the law and was set aside.
- The court cited legal precedents, such as Abdul Haseeb v. Chairman, Arbitration Council Lahore, and Dr. Syed Qambar Murtaza Bokhari v. Committee Lahore, to support its interpretation of the Nikahnama entries and the delegation of divorce rights.
- The court ruled that Sections 10, 11, and Order II, Rule 2, C.P.C. were not applicable in this case as the civil suit was filed before the Arbitration Council’s order, and the constitutional petition was competent to examine the validity of the order.
- The court ultimately upheld the writ petition, declared the divorce deed executed by the wife as null and void, and stated that the wife could file a suit before the concerned Family Court if she wished.
- As the main issue was resolved in the writ petition, the civil revision became infructuous and was dismissed accordingly.
In summary, the court determined that specific delegation of the right to divorce must occur, and mere mention of certain words in the Nikahnama, like those in Column 18, does not automatically grant the wife the right of Talaq-e-Tafweez without explicit delegation by the husband. The divorce deed was declared void, and the Chairman Arbitration Council’s order was set aside.
n the case of Mst. Nazir Fatima v. Nazim Union Council, Ward No. 5, Dhoke Hassu, Rawalpindi (2004 PLD 77 Lahore High Court), the issue at hand revolved around the dissolution of a marriage and the delegation of the right to divorce by the husband to the wife, as governed by the Muslim Family Laws Ordinance, 1961.
Here’s a summary of the court’s key points:
- One of the conditions of the marriage between the parties was that the husband had delegated the right to divorce to his wife. This delegation was recorded in Column 18 of the Nikahnama, indicating that the wife had the authority to pronounce divorce upon herself for her husband.
- The wife exercised this delegated right and pronounced divorce upon herself for her husband. In compliance with the terms of Sections 7 and 8 of the Muslim Family Laws Ordinance, 1961, she also sent a notice to the Nazim (head) of Union Council Ward No. 5, Dhoke Hassu, Rawalpindi, informing him of the divorce.
- The Nazim, initially unaware of the legal position, responded to the wife by stating that since the husband was not willing to pronounce divorce, the wife could approach the court. He indicated that he could not grant Khula, a form of divorce initiated by the wife. Subsequently, the Nazim forwarded the case to the Family Court.
- The court noted that the Nazim had misunderstood the legal situation. The right of divorce can lawfully be delegated by the husband to the wife, as had occurred in this case, and the wife’s notice was in compliance with the provisions of Sections 7 and 8 of the Muslim Family Laws Ordinance, 1961.
- Under the provisions of the ordinance, a prescribed period of ninety days was required to elapse after the receipt of the notice issued by the wife. Reconciliation between the parties was not possible during this time. After this period, the law, as prescribed in Sections 7(3) and 8 of the ordinance, would take its course.
- The Nazim was directed to issue the requisite document regarding the receipt of the notice and the failure of reconciliation within the prescribed time.
In summary, the case reaffirms the legal validity of the delegation of the right to divorce from the husband to the wife as long as it is properly recorded in the Nikahnama. It also clarifies the procedure to be followed in cases of delegated divorce under the Muslim Family Laws Ordinance, 1961, including the role of the Nazim in the process.
In the case of Muhammad Imtiaz v. Nasir Ali (2004 YLR 482 Lahore High Court), the central issue pertained to the validity of a condition or stipulation contained in Column 18 of the Nikahnama (marriage contract) and its effect on the husband’s right to divorce his wife.
Here’s a summary of the court’s key points:
- The court examined Section 5 and Form II, specifically Column 18, of the Nikahnama, along with relevant provisions of the Contract Act (Contract Act, 1872). It also considered the husband’s right to divorce his wife.
- The court recognized that the primary object of the contract of marriage (Nikah) is the procreation and legalizing of children, which is a lawful objective. In Islamic law, marriage serves the purpose of establishing a family and raising children within a lawful and recognized framework.
- The court highlighted that agreements in restraint of marriage and legal proceedings, or those whose meaning is uncertain, are generally considered void under Sections 26, 28, and 29 of the Contract Act, 1872. These sections deal with the validity of agreements in various contexts.
- Importantly, the court clarified that the provisions of the Contract Act, 1872, pertain to agreements and do not necessarily apply to conditions or stipulations contained within agreements. In this case, the condition specified in Column 18 of the Nikahnama was not considered the primary object of the marriage contract.
- Therefore, the court concluded that the condition contained in Column 18 of the Nikahnama, which may restrict the husband’s right to divorce his wife, was not the primary objective of the marriage contract and, therefore, was not void.
In summary, the court affirmed that the primary objective of a marriage contract is the procreation and legalizing of children, and conditions or stipulations within the contract should be examined in the context of their relationship to this primary objective. In this case, the condition in Column 18 was deemed valid as it did not contradict the primary purpose of the marriage contradict the primary purpose of the Marriage Contract.
Jurisdiction of Arbitration Council (territorial)
THE WEST PAKISTAN RULES UNDER MUSLIM FAMILY LAWS
ORDINANCE, 1961
3. The Union Council which shall have jurisdiction in the matter for purpose of clause (d) of section 2, shall be as follows namely: –
(a) in the case of an application to contract another marriage under ‘subsection (2) of section 6, it shall be the Union Council of the Union or Town in which the existing wife of the applicant, or where the husband has more wives than one, the wife with whom the applicant was married last, is residing at the time of his making the application ;
Provided that if at the time of making the application, such wife is not residing in any part of West Pakistan, the union council that shall have jurisdiction shall be:—
i) in case such wife was at any time residing with the applicant in any part of West Pakistan, the union Council of the Union or Town where such wife so last resided with the applicant ; and
ii) in any other case, the Union Council of the union or Town where the applicant is permanently residing in West Pakistan;
(b) in the case of a notice of talaq under sub-section (1) of section 7, it shall be the Union Council of the Union or Town in which the wife in relation to whom talaq has been pronounced was residing at the time of the pronouncement to talaq ;
Provided that if at the time of pronouncement of talaq such wife was not residing in any part of West Pakistan, the union Council that shall have jurisdiction shall be:–
i) in case such wife was at any time residing with the person pronouncing the talaq in any part of West Pakistan, Union Council or the Union or Town where such wife so last resided with such person; and
ii) in any other case, the Union Council of the union or Town where the person pouncing the talaq is permanently residing in West Pakistan; and
( c ) in the case of an application for maintenance under section 9, it shall be the Union Council of the Union or Town in which the wife is residing at the time of her making the application, and where application under,, that section is made by more than one wife, it shall be the Union Council of the Union or Town in which the wife who makes the application first, is residing at the time of her making the application.
3-A. Where the whereabouts of the wife who is to be supplied a copy of the notice of talaq under sub-section (1) of section 7 of the Ordinance, are not known to the husband, or cannot, with due diligence, be ascertained by him, he may, if so permitted by the Chairman, give notice of the talaq to the wife through her father, mother, adult brother or adult sister, or if their whereabouts are not known to the husband or cannot, with due diligence, be ascertained by him, he may, with the permission of the Chairman serve the notice of talaq on her by publication in a newspaper, approved by the Chairman, having circulation in the locality where he last resided with
the wife.
