Josh and Mak International is a renowned law firm in Islamabad, Pakistan, providing expert legal services for divorce and khula (dissolution of marriage) cases. With extensive experience in mediating and litigating Divorce and Khula cases, the firm offers comprehensive legal solutions to both local and overseas Pakistani citizens seeking separation from their spouses. Whether it’s a straightforward divorce or a complex khula case, Josh and Mak International is committed to ensuring the protection of their clients’ rights and interests.
Understanding Divorce and Khula in Pakistan
Divorce and khula are two distinct legal procedures available under Muslim Family Laws in Pakistan. Divorce is the right of a husband to dissolve the marriage, while khula is the right of a wife to seek separation by returning her dower (mehr) or forgoing her financial rights. The legal process for both divorce and khula involves several steps, including notice requirements and reconciliation attempts.
Expert Legal Advice
Josh and Mak International provides expert legal advice to local and overseas Pakistani clients seeking divorce or khula. They understand the emotional and legal complexities of such cases and strive to offer empathetic support to their clients. Their team of skilled lawyers guides clients through the legal procedures, ensuring they make informed decisions in their best interests.
Handling Divorce Cases for Local and Overseas Clients
For local clients, Josh and Mak International represents them in Family Courts across Pakistan, following the provisions of the Muslim Family Laws Ordinance, 1961, and other relevant laws. The firm ensures that the divorce process adheres to all legal requirements to make it legally effective.
For overseas Pakistani clients, Josh and Mak International assists in managing divorce cases in Islamabad, Pakistan. Their seamless communication channels allow clients abroad to stay updated on their cases, without the need to be physically present in Pakistan.
Facilitating Khula Cases
Khula cases can be particularly complex, as they involve considerations of financial rights and dower return. The firm handles khula cases meticulously, ensuring that clients in Pakistan and abroad are aware of their rights and that their interests are protected during the proceedings.
Registration and Documentation
Josh and Mak International also assist clients in the registration of marriages, which is mandatory under Section 5 of the Muslim Family Laws Ordinance, 1961. Proper registration helps in avoiding legal complications in the future.
Jurisdiction and Compliance
The firm ensures that the cases are filed in the appropriate Family Courts, and all legal procedures are followed in compliance with the relevant laws. They also keep clients informed about any changes in laws or regulations that may affect their cases.
Josh and Mak International’s dedication to providing efficient and compassionate legal services for divorce and khula cases for local and overseas Pakistanis has earned them a solid reputation among their clients. Their expertise in handling such sensitive matters, along with their commitment to protecting their clients’ rights, has made them a trusted choice for local and overseas Pakistanis seeking legal support in family matters. With their in-depth knowledge of the legal system and proactive approach, Josh and Mak International ensures that their clients receive fair and just outcomes in their divorce and khula proceedings.
About Khula in Pakistan
In Islam, when a husband and wife are unable to live happily together within the limits set by Almighty Allah, they have the option to dissolve their marriage through divorce or khula. The husband can initiate a divorce (Talaq), and the wife can also seek dissolution of the marriage by filing a suit. In Pakistan, the party filing the suit is known as the “Plaintiff,” while the other party is referred to as the “Defendant.” Marriage can be dissolved through various means: divorce by the husband, mutual consent of both parties, a judicial decree granted by the court, or the exercise of a contractual right of divorce by the wife. Khula is a right granted to the wife in Islam to seek dissolution of the marriage through court intervention, while a man gives a Talaq. Grounds for a wife to obtain a divorce in Pakistan include the husband’s neglect of maintenance, imprisonment, failure to fulfill marital obligations, impotency at the time of marriage, cruelty, and other valid reasons.
To obtain a Khula in Pakistan, the wife applies to the court if she is not delegated the right of divorce in her marriage contract. The court issues notice to the husband, and if he fails to appear, the court may proceed ex-parte and grant the decree. If reconciliation fails, the court will pass a decree for the dissolution of marriage. After obtaining the Khula decree from the court, the wife needs to file an application before the Chairman Arbitration Council or Union Council of her jurisdiction to obtain a dissolution of marriage certificate.The wife can be delegated the right of pronouncement of divorce (Talak-e-Tafweez) if specified in the marriage contract (Nikahnama). Otherwise, it remains the exclusive right of the husband. If the wife has no such right and seeks dissolution of marriage, she can file a suit for Khula or divorce through the court.
A divorce case can be filed in Pakistan where the marriage took place, where it was registered, where the defendant resides, or where the wife ordinarily resides. Overseas Pakistanis can file for divorce without coming to Pakistan if their marriage is registered in the country, appointing someone through a Special Power of Attorney to represent them in court.Regarding the custody of children for divorcing couples, the Guardian and Wards Act and the Family Courts Act are applicable, with the welfare of the minor child being of paramount consideration.
After divorce, the bridal gifts (dowry/jahaiz) remain the exclusive property of the wife, and she is also entitled to claim deferred dower and maintenance during the Iddat period.The procedure for a husband to give divorce to his wife in Pakistan involves giving a written notice to the chairman of the Union Council, with a copy sent to the wife. An arbitration council is then constituted for reconciliation, and if reconciliation efforts fail after ninety days, the divorce takes effect.Husband and wife can dissolve their marriage through mutual consent, which is known as Talaq-e-Mubarat. If either party offers separation, and it is accepted, the dissolution is complete.Khula is a release from the matrimonial bond, which, according to the dictate of the Holy Qur’an, can be exercised if circumstances indicate that it was impossible for the parties to live within the limits prescribed by God, and their reunion would give birth to a hateful union. Courts are bound to grant the right of Khula to a woman, even if she expressly claims or omits to claim dissolution on the ground of Khula in her pleadings, and even if other grounds for seeking the dissolution of marriage cannot be proved. The Dissolution of Muslim Marriages Act 1939 provides grounds on which a woman may seek khula, a judicial form of divorce, without the husband’s consent, provided she is willing to forgo her financial rights. The grounds for judicial divorce include:
- • Desertion by the husband for a continuous period of four years.
- • Failure of the husband to maintain the wife for a continuous period of two years.
- • The husband contracting a polygamous marriage in violation of established legal procedures.
- • The husband’s imprisonment for a period of seven years or more.
- • The husband’s failure to fulfill marital obligations for a continuous period of three years.
- • The husband’s impotence that has persisted since the time of the marriage.
- • The husband’s insanity for a continuous period of two years or his severe illness.
- • The wife exercising her option of puberty if she was married before the age of 16 by any guardian and repudiates the marriage before the age of 18, provided that the marriage was not consummated.
- • Cruelty by the husband, which includes physical or other mistreatment and unequal treatment of co-wives.
- • Any other ground recognized as valid for the dissolution of marriage under Muslim law.
These grounds provide a legal basis for women to seek khula and obtain a judicial divorce in Pakistan.
Question: What is the procedure to obtain “Khula” (dissolution of marriage) in Pakistan?
Answer: If a wife is not delegated the right of divorce in her nikanama (marriage contract form), she would apply for Khula in the court. The process starts when the wife files a suit for the dissolution of marriage, and the court issues a notice to the opposite party, i.e., the husband. If the husband fails to appear after due process of posting and publication, the court can proceed with the case ex-parte and pass a decree. In cases where the husband or his representative appears, he is required to file a written statement, after which the court fixes a date for pre-trial proceedings aimed at reconciliation. If reconciliation efforts fail, the court will pass a decree for the dissolution of the marriage.
Question: After obtaining a Khula decree from the court, is the dissolution of the marriage complete?
Answer: No, after obtaining a Khula decree from the court, you need to file an application before the Chairman of the Arbitration Council/Union Council in your jurisdiction to obtain a dissolution of marriage certificate.
Question: Can a wife be delegated the right of pronouncement of divorce?
Answer: Yes, if the wife is delegated the right of divorce in the nikanama (marriage contract form), this right is called Talak-e-Tafweez (delegated powers of divorce). If the husband delegates the right to divorce while contracting the marriage, as per paragraph 18 of the Nikahnama, then the wife has the right to divorce. Otherwise, it remains the exclusive right of the husband. However, if the wife has no such right and she seeks a dissolution of marriage, she can file a suit for the “Dissolution of Marriage” based on Khula or seek divorce through the intervention of the court.
Question: How would I know where my divorce case will be filed in Pakistan?
Answer: Your divorce case can be filed where the marriage took place or where it was registered, or where the defendant (husband) is residing. Additionally, the wife can also file a case at the place where she ordinarily resides.
Question: Can an overseas Pakistani file for divorce without coming to Pakistan?
Answer: Yes, but for that to happen, her marriage should be registered in Pakistan. She can appoint someone through a Special Power of Attorney who will represent her on her behalf in the court for the divorce proceedings.
Question: What is the law for custody of children for divorcing couples in Pakistan?
Answer: The law governing the custody of children for divorcing couples in Pakistan is the Guardian and Wards Act, and the family court can also entertain suits related to the custody of children according to the Family Courts Act 1964. The general rule is that the interest and welfare of the minor child should be of paramount consideration.
Question: In Pakistan, what are the terms used to identify the parties in a divorce proceeding?
Answer: In a divorce proceeding in Pakistan, the party initiating the suit is referred to as the “Plaintiff,” while the other party to the divorce proceedings is known as the “Defendant.”
Question: What are the ways marriage can be dissolved in Pakistan?
Answer: Marriage can be dissolved in various ways in Pakistan. These include divorce, where the husband pronounces Talaq at his will without the intervention of a court; mutual consent of the husband and wife, without the involvement of the court; a judicial decree obtained at the instance of the court; and by the wife exercising her contractual right of divorce.
Question: What is the difference between Khula and Talaq?
Answer: As previously mentioned, Khula is the right of a wife in Islam to seek the dissolution of her marriage from her husband through the intervention of the court. It is essential to understand that while a woman seeks a “Khula,” a man gives a “Talaq” when ending the marriage.
Question: What grounds are available to a wife to get a divorce according to the Laws of Pakistan?
Answer: The Dissolution of Muslim Marriages Act provides several grounds upon which a woman is entitled to obtain a decree for the dissolution of her marriage in Pakistan. These grounds include the whereabouts of the husband being unknown for four years; husband neglecting or failing to provide maintenance; husband being sentenced to imprisonment for seven years or more; husband failing to perform marital obligations for three years; husband being impotent at the time of marriage; husband being insane for two years; marriage taking place when the wife was a minor; husband treating the wife with cruelty; husband leading an infamous life; attempts to force the wife into an immoral life; the husband having venereal disease or incurable leprosy; husband disposing of the wife’s property; husband obstructing the wife’s religious practices; and the wife being unable to live with the husband within the limitations imposed by Almighty Allah. Additionally, there may be other grounds available to the wife for the dissolution of marriages under Muslim Law.
Question: What are the rights of the wife to property after the divorce has taken place in Pakistan?
Answer: After divorce, the bridal gifts (dowry/jahaiz) remain the exclusive property of the wife. Additionally, she is entitled to claim deferred dower and maintenance during the Iddat period.
Question: What procedure should a husband adopt to give divorce to his wife in Pakistan?
Answer: To give divorce to his wife in Pakistan, a husband must follow the procedure outlined in the Muslim Family Laws Ordinance. He should give a written notice of Talaq (divorce) to the chairman of the Union Council and also send a copy of the notice to his wife. Subsequently, within thirty days of receiving the notice, the chairman will constitute an arbitration council to attempt reconciliation between the parties. If reconciliation efforts fail after ninety days, the divorce will be effective.
Question: What are the ways marriage can be dissolved in Pakistan?
Answer: Marriage in Pakistan can be dissolved in several ways. It can be initiated by the husband’s pronouncement of Talaq (divorce) at his will, without the intervention of a court. Alternatively, dissolution can occur by mutual consent of the husband and wife, without the involvement of a court. A judicial decree for dissolution can also be obtained at the instance of the court. Lastly, the wife can seek dissolution of marriage by exercising her contractual right of divorce.
Question: What grounds are available to a wife to get Divorce according to the Laws of Pakistan?
Answer: According to the Dissolution of Muslim Marriages Act, a woman in Pakistan is entitled to obtain a decree for the dissolution of her marriage on various grounds. These include the whereabouts of the husband being unknown for four years, husband neglecting or failing to provide maintenance, husband being sentenced to imprisonment for seven years or more, husband failing to perform marital obligations for three years, husband being impotent at the time of marriage, husband being insane for two years, the woman being married when she was a minor, husband treating her with cruelty, husband leading an infamous life, attempting to force her into an immoral life, venereal disease, incurable leprosy, disposing of her property, obstructing her in the observance of her religious practices, and the woman being unable to live with the husband within the limitations imposed by the Almighty Allah. Additionally, there may be other grounds available to the wife for the dissolution of marriages under Muslim Law.
Question: Can husband and wife dissolve their marriage through mutual consent?
Answer: Yes, husband and wife can dissolve their marriage through mutual agreement, and this is known as Talaq-e-Mubarat. In this process, either party can offer separation, and upon acceptance of the offer, the dissolution is considered complete, and the marriage bond is released.
Question: My husband’s whereabouts have been unknown for a long time. Can I end my marriage?
Answer: Yes, you can seek the end of your marriage under the Dissolution of Muslim Marriage Act 1939 if your husband’s whereabouts have been unknown for a continuous period of four years.
Question: If I sent a notice of Talaq (divorce) through the Chairman of the Union Council, can it be revoked?
Answer: Yes, a divorce notice (Talaq) can be revoked before the expiry of ninety days from the date on which it was delivered.
Question: How can I protect myself from harassment by my spouse and their family members?
Answer: If you experience threats or assault from your spouse or their family members, you have the right to take action for your safety. You may file a complaint at the police station against your spouse and any other individuals involved in the harassment.
Question: I have applied for a divorce. Is it safe for me to consider a new marriage?
Answer: It is important to wait until the divorce is finalized before considering a new marriage. Until the divorce is legally completed, you are still considered legally married, and any new marriage may not be valid.
Shariah and Khula in Pakistan
Islamic Shariah advocates Nikah to maintain a morally healthy society, promoting harmony and peace between husband and wife. However, if a Nikah-based marriage fails to provide these benefits and the matrimonial relations become unpleasant and discordant, the option of Khula is available. Khula allows a woman to seek dissolution of the marriage by returning her Mahr (dowry) to the husband.
In Islamic jurisprudence, Khula is defined as a form of breaking the marriage bond, where the husband pronounces divorce after receiving money from his wife. The right to divorce lies with the husband, but if the wife wishes to seek divorce, she can do so by returning her Mahr. If the husband refuses to divorce even after the Mahr is returned, the woman can approach the court, and the court can secure the divorce in exchange for the Mahr.
During the time of Prophet Muhammad (peace be upon him), cases of Khula arose, leading to the establishment of rules and procedures. The Quran acknowledges the permissibility of Khula and emphasizes the importance of not transgressing the limits set by Allah in such matters.
It is essential to note that seeking Khula without reasonable grounds is discouraged in Islam. However, if there are valid reasons, Khula is permissible. For instance, if a woman dislikes her husband and fears that living with him may lead her away from her faith, she can seek Khula. The Prophet (peace be upon him) exemplified this by facilitating Khula in cases where the couple faced difficulties in their marriage.In summary, Khula is an option available to women in Islam to dissolve a marriage if there are valid reasons and the marriage is no longer conducive to a harmonious relationship. The well-being and adherence to the limits prescribed by Allah are paramount in such matters.
In cases of Khula, the woman is required to return the Mahr (dowry) to secure the divorce. If the husband is unwilling to divorce even after the Mahr is returned, the court can compel him to accept the money and grant the divorce. The amount of Mahr should be considered as the maximum for granting Khula, and demanding more than the Mahr for Khula is undesirable but not illegal according to some Islamic scholars.
Once Khula is pronounced, the divorce becomes final and irrevocable. The husband has no right to revoke the divorce during the woman’s Iddah (waiting period). This ensures that the purpose of Khula, which is to give the woman the right to separate from her husband if she dislikes him, is fulfilled. If the husband could revoke the divorce, it would negate the woman’s right to separation.
Like divorce, Khula can be effective without the intervention of the court. It can be requested and granted privately between the husband and wife, or in the presence of relatives and friends. However, if the husband is unwilling to grant Khula, the case can be referred to a court.
Unlike divorce, Khula can be demanded and granted even before the completion of the woman’s menstrual period. A woman can request Khula herself, or her Wali (guardian) can do so on her behalf. However, if the woman has not attained puberty, her Wali has no right to demand Khula on her behalf.
Khula’ Divorce, also known as Talaqul Khula’, is a form of divorce initiated by the wife when she develops an aversion to her husband and wishes to end the marriage. In this type of divorce, the wife surrenders her dower or some of her property to the husband as a condition for him to divorce her. The level of hatred must be such that she no longer wishes to maintain conjugal relations with him.
However, in ‘Talaqul Khula’ and Mubarat Divorce, it is not necessary to mention the wife’s name if she is identified.
In cases where the wife appoints a representative to offer something other than the dower to her husband for the purpose of divorce, the representative should mention the specific thing given instead of using the word “Mahraha” (her dower).
Khula is a process in which a woman can seek a divorce by surrendering certain rights granted to her, such as her dower, dowry, and gifts received from the husband during the marriage. This process allows her to dissolve the marriage without having to use her own finances. While many believe that khula can only be obtained through court proceedings, out-of-court settlements are also possible, though less common.
In Pakistan, the average woman may have to surrender jewelry gifted by her husband during khula proceedings. In some cases, there may be pressure on her to give up tangible items or property received from her own parents.
Contrary to a widespread misconception, Islamic law grants women the right to dissolve their marriages as well. This can be done through an agreement between the husband and wife, either in the form of khula or talaq-e-mubarat. In khula, the wife dissolves the marriage by providing something in exchange for her freedom. In talaq-e-mubarat, both spouses mutually agree to separate. The divine right of khula is mentioned in the Qur’an, emphasizing that if the wife fears the limits set by Allah cannot be upheld, she may offer something for her freedom, and there is no blame on either party for this decision.
There is a consensus among jurists that it is considered unjust for a husband to receive any form of payment from his wife if he has been the oppressor in the marriage. However, if the woman is at fault and seeks divorce, the husband may receive something from her, but the value should not exceed what he had given to her as dower.
The consequences of khula are similar to talaq-e-bain, where the couple cannot reconcile without entering into a new matrimonial contract through remarriage. All four major schools of thought in Islam agree that khula can be decided at the bilateral level, but some believe it can only be obtained through a competent court.
Islam disapproves of using the right of khula without reasonable grounds. According to a saying of the Prophet Muhammad (PBUH), women who do so will not even attain the fragrance of Jannah (paradise).
Pakistan’s Laws of Khula
The family laws of Pakistan clearly address khula under Section 8 of the Muslim Family Laws Ordinance. Khula is initiated when the wife offers compensation to the husband to release her from marital responsibilities. With mutual consent, khula can also be granted through talaq-e-mubarat. The court does not always require the woman to produce evidence to establish that she cannot live with her husband anymore.
Despite these rights and laws, women often hesitate to exercise the right of khula outside of court proceedings. Many opt to surrender not only the dower given by their husbands but also their belongings and property received from their own parents to avoid lengthy litigation and potential character assassination, even in cases where the husband has been an oppressor.
In Pakistani society, women typically try to resolve their marital issues within the family and only turn to the courts for dissolution of marriage as a last resort when the situation becomes unbearable and the husband is not willing to grant her freedom from the marriage. Recently, there has been an increase in the number of cases reaching the courts, partly due to the courts’ efforts to resolve family cases within a six-month period.
According to Muslim jurists, there are certain circumstances where a judge can terminate a marriage even without the consent of the husband. For example, if the husband is missing, mentally incapacitated, impotent, or fails to provide maintenance, the court can intervene and separate him from his wife, even against his wishes. Similarly, if the husband is unwilling to fulfill his marital obligations, the court can also intervene and grant separation.
The effect of dissolution of marriage through court is similar to talaq-e-bain, which means that the couple can only reunite through remarriage. This provision ensures that the dissolution is final and irrevocable, giving both parties the freedom to move on from the marriage.
Indeed, Islam and the laws of the land provide women with the right to approach the judiciary for the dissolution of their marriages. However, the actual implementation of this right is hindered by various obstacles, leading only a small number of suffering women to seek relief and justice through the courts.
One significant factor discouraging women from pursuing legal avenues for divorce is societal disapproval. Many women fear judgment and social stigma, which may negatively impact their reputation and social standing. Additionally, the litigation process itself can be lengthy and costly, deterring many women, especially those from lower socioeconomic backgrounds, from seeking legal recourse.
Furthermore, lack of support from parents or family members can also be a major deterrent for women seeking divorce. In some cases, women may face pressure from their families to maintain the marriage, regardless of the difficulties they may be experiencing.
The emotional and physical stress associated with divorce proceedings can be overwhelming for women, making them hesitant to initiate legal actions. This stress can be compounded by cultural norms and expectations that place the burden on women to endure and preserve the marriage at all costs.
In light of these challenges, it becomes evident that despite the legal provisions allowing women to seek dissolution of marriage through the courts, the practical barriers make it difficult for many suffering women to exercise this right. Addressing these issues and providing better support systems can help empower women to seek justice and relief in cases of dysfunctional and harmful marriages.
Haq-e-Tafweez-e-Talaq is an important provision in Islamic law that grants women the right to seek the power of divorce from their husbands. Muslim jurists widely agree that Islam recognizes this right for women, and it can be delegated by the husband to the wife through verbal or written means, either during the marriage solemnization or at a later stage, with various forms and conditions. Once the husband delegates this right, it cannot be revoked, and he retains his own right of divorce even after granting this authority to his wife.
The Muslim Family Laws Ordinance (MFLO) also acknowledges and incorporates this right. Column 18 of the standard marriage contract form, known as nikahnama, allows the husband to delegate the power of divorce to his wife along with any mutually agreed-upon conditions. If the wife exercises this right at a later time, she is required to send a divorce notice to the Chairman of the Arbitration Council. If efforts at reconciliation by the Arbitration Council fail, the council issues a divorce certificate.
Despite the legal and religious recognition of this option, it is rarely availed by women in Pakistani society. This can be attributed to a lack of awareness about this provision in the nikahnama and superstitions surrounding its usage. In many cases, parents and families may not seek this right for their daughters, considering it a bad omen for the start of the marital life. Consequently, the option may be crossed out on the official nikahnama without the bride’s consultation.
However, there is a notable increase in the literate urban class and aristocracy where women are seeking this right, especially during marriage. Overall, while there is no religious or legal dispute regarding Haq-e-Tafweez-e-Talaq, its limited utilization among women is primarily due to a lack of awareness and superstitious beliefs, while men often do not support its inclusion in the nikahnama.
Liaan
Liaan is a rare procedure for dissolving a marriage in Pakistan, used when a husband accuses his wife of adultery but fails to produce four witnesses to substantiate the claim. In such cases, the husband has two options: he can either admit that his accusation was false and face punishment for making a false allegation of adultery (qazaf), which involves receiving 80 stripes, or he can refuse to issue a divorce to his wife.
Refusal to divorce and financial settlement
If the husband refuses to divorce his wife, she may try to persuade him to enter into an agreement of Khul’. Khul’ is an Arabic term that means ‘to take out’ or ‘remove.’ In the context of marriage, it refers to the wife seeking dissolution of the marriage by offering a financial settlement to the husband in exchange for a divorce.
According to Islamic law, the couple can agree on any financial arrangement they wish in a Khul’ agreement. However, Islamic jurists state that if the husband was at fault and his actions led to the failure of the marriage, it is impermissible for him to demand a financial payment in return for the divorce. In such cases, he should divorce the wife without demanding anything in return.
The Quran also emphasizes fairness in such situations, stating that if a husband decides to replace one wife with another, he should not take back any part of the dower (mahr) he had given to the former wife, even if it was a whole treasure. Demanding the return of the dower unjustly is likened to taking it by slander and manifest wrong.The above explanation provides further details on the concept of Khul’, which is the right of a woman to seek dissolution of her marriage by offering a financial settlement to her husband. If the husband was at fault for the failure of the marriage, taking anything in return from the wife is considered a major sin according to Islamic law.
However, if the husband was not at fault, and the wife wishes to end the marriage for some reason, then it is permissible for the husband to demand and receive some financial payment. It is recommended for him not to take more than the actual stipulated dowry, but they are allowed to agree on any amount mutually.
The verse from Surah al-Baqarah mentioned above highlights that it is unlawful for men to take back anything from their wives, except in cases where both parties fear being unable to keep the limits ordained by Allah. In such situations, if the wife offers something for her freedom, it is permissible.
According to the majority of Islamic jurists, a Khul’ agreement can be carried out without going to an Islamic court. The consent of both parties is sufficient for the agreement to be valid.
Khul’ is considered an irrevocable divorce, meaning it is a finalized cancellation of the marriage. If the couple remarries after Khul’, the husband will have two more divorces remaining, totaling three. Once all three divorces are issued, he cannot take her back unless she marries another man.
The waiting period (idda) for the woman after Khul’ is similar to that of a woman given an irrevocable divorce, which is three menstrual cycles. The husband cannot take her back within or after the waiting period without her consent, unless they contract a new agreement of marriage.
It is crucial to note that a Khul’ agreement can only be carried out with the consent of the husband. The wife cannot enforce Khul’ without her husband’s consent, and this ruling is agreed upon by all four Sunni schools of Islamic law.
The Evolution of Khula in Pakistan
In Pakistan, seeking separation or Khula was once an arduous and lengthy process for women. They had to file civil petitions, provide evidence, and endure pre-trials with their families and witnesses. However, with recent legal reforms, the Khula process has become more accessible and efficient. Let’s delve into the problem of Khula in Pakistan and explore how it has evolved over the years.
The Changing Landscape of Khula
Earlier, the Khula process could drag on for years due to the complex legal procedures. However, under the new system, a woman can now file a case for Khula, and the court is bound to decide within six months of filing the case. This has significantly reduced the time and effort required for women to obtain Khula.
Reasons for Seeking Khula in Pakistan
One view suggests that a significant number of Khula cases are filed by women who initially married out of love but later faced the realities of the situation. The fever of love may subside, revealing practical challenges, such as a jobless husband or a husband with previous marriages and children from the first wife.
On the other hand, some men prefer to give verbal Talaq (divorce) instead of granting Khula. This often leads women to resort to the legal process of Khula. Previously, women had to file separate cases for Khula, dower amount, child custody, and maintenance. However, after a legal amendment in 2002, these issues can now be addressed in one go.
Simplified Khula Procedure
Thanks to procedural reforms, the process of Khula has been simplified to a significant extent. A woman now only needs to produce a written statement expressing her desire to end the marriage, along with necessary documents. After a free trial, the court decides within two to three months and grants the Khula. Reconciliation efforts are made during a meeting of both parties, and if unsuccessful, a court trial is held within 15 days.
Financial Implications of Khula
If a case for Khula is filed, the woman may have to give up on the alimony mentioned in her Nikahnama or marriage contract. Additionally, specific reasons are not required to be cited while filing a Khula case.
The Right to Khula in Pakistani Law
Both husband and wife can come to an agreement for divorce, where the husband pronounces a single declaration of divorce upon his wife. If the couple does not reconcile before the waiting period of ‘iddah’ (three menstrual cycles of the wife), a divorce is established.
The husband alone can divorce his wife. Similarly, if the wife wishes to divorce her husband, there are two ways to achieve this: either by requesting her husband to declare a divorce or by approaching a Shariah Court for assistance.Despite the availability of Khula as an option for dissolving marriage in Pakistan, many women still face challenges due to societal disapproval, lack of awareness, and superstitious beliefs. However, the recent legal reforms have made the Khula process more accessible and efficient for women seeking separation. Empowering women with the right to Khula ensures that they can exercise their agency and seek relief and justice through the legal system when faced with an unviable marriage.
Clashing Interpretations of Ulemas
Obtaining Khula, or separation through divorce, in Pakistan has historically been a challenging process for women, marred by conflicting interpretations of Islamic law. While statutory laws and interpretations by Superior Courts support women’s rights, a significant number of Ulema refuse to recognize court-granted Khula without the husband’s consent as a valid divorce. This conflicting scenario creates confusion and stress for women seeking to end unviable marriages.
Historical Struggles for Khula
In the past, women faced stress, delays, and difficulties in seeking Khula, similar to cases of dissolution of marriage based on other grounds, such as cruelty or non-maintenance. Husbands often refused to grant Khula and resorted to tactics such as demanding huge compensation or making false allegations to defeat the wife’s right to Khula. This led to prolonged legal battles and immense strain on judges, requiring extensive evidence sifting and lengthy procedures.
Reforms under President General Musharraf
In an effort to address these challenges, President General Musharraf introduced amendments to the Family Law Courts Act on October 1, 2002. These amendments aimed to simplify and expedite the Khula process, providing much-needed relief to suffering wives.
Simplified Khula Procedure
Under the amended procedure, when a wife files a case for dissolution of marriage, the court issues a notice to the husband. If the husband fails to appear after proper posting and publication, the court can proceed with the case ex-parte. If the husband or his representative does appear, a written statement is required, followed by pre-trial proceedings for reconciliation.
The Consequences of Khula
The amendments state that if reconciliation efforts fail, the family court shall pass a Decree for dissolution of marriage, restoring to the husband the mehr (dower) received by the wife at the time of marriage. Following Khula, the ex-husband and ex-wife can remarry each other without the necessity of an intervening marriage to another person, as required under the doctrine of Halala, recognized by most jurists.
Conflicting Interpretations
Despite these legal reforms, the conflicting interpretations of Islamic law persist. Many Ulema continue to dispute the validity of Khula granted by courts without the husband’s consent, leading to confusion and uncertainty for women seeking legal separation.The struggle for obtaining Khula in Pakistan has been a complex journey for women, with conflicting interpretations of Islamic law creating challenges in legal proceedings. While recent amendments have simplified the procedure and brought relief to suffering wives, it is essential to address the differing interpretations to ensure fair and just outcomes for women seeking to end unviable marriages through Khula. Clear guidance from the legal system and religious authorities is vital to protect women’s rights and promote a more equitable society.
Empowering Women in Pakistan to Seek Divorce (Khula)
In Pakistan, there is a slow but noticeable change in the mindset of women who are now seeking to escape loveless marriages and abusive behavior from husbands and in-laws. While divorce was once considered taboo in Pakistani society, the fast-moving world and evolving social dynamics have encouraged women to challenge traditional norms. Despite being a strict Muslim nation, more women are mustering the courage to seek divorce, but numerous social and cultural factors still hinder their decision.
Understanding the Difference between Talaq and Judicial Khulla
In Islamic law and hence in Pakistani law , there are two primary ways to dissolve a marriage: Talaq and Judicial Khulla.
Talaq: Talaq is an Islamic divorce initiated by the husband who willingly terminates the marriage contract. A husband can pronounce Talaq orally or in written form, as outlined in the Muslim Family Laws Ordinance 1961, Section 7.
The process of Talaq requires the husband to send a written notice of divorce to his wife and also to the Union Council or the relevant government office responsible for issuing divorce certificates. This written notice must include the address of the ex-wife, enabling the government office to send registered post notices to her. The Union Council or Chairman of the Arbitration Council then constitutes an arbitration council within 30 days to attempt reconciliation and settlement, if possible. After a period of 90 days, during which 3 monthly notices are issued, the Union Council or Chairman of the Arbitration Council issues a divorce certificate.
It is essential to note that verbal Talaq is not recognized by law, and the husband must send a written notice to the government office for the divorce to be valid. However, as per Islamic scholars, once Talaq is pronounced by the husband and Khulla is obtained from the court of law, both divorce methods are effective and binding.
Judicial Khulla: Judicial Khulla is a divorce sought by a woman through the legal system. In this process, a woman initiates the divorce by filing a case in court, requesting separation from her husband. The court then issues notice to the husband, and efforts for reconciliation are made during pre-trial proceedings. If reconciliation is not possible, the court grants a decree for the dissolution of marriage.
Changing Perceptions
With changing times, women in Pakistan are becoming more empowered and asserting their rights. While divorce still faces social stigma and dilemmas, more women are breaking free from loveless marriages and abusive relationships. This shift in mindset is gradually reshaping the societal perception of divorce.
The changing trends in Pakistan indicate a growing trend of women asserting their rights to seek divorce in loveless or abusive marriages. While traditional norms and social pressures still persist, the evolving mindset and empowerment of women signal a positive change in Pakistani society. As women continue to challenge taboos and claim their rights, the path towards a more equitable and just society is set in motion.
Mutual Divorce (Talaq-i-Tafweez and Mubarat) Law in Pakistan: Empowering Couples to Dissolve Marriage Amicably
In Pakistan, there are two forms of divorce known as Talaq-i-Tafweez and Mubarat, which allow couples to dissolve their marriage quickly and with minimal procedural steps, without the need to approach the courts.
Mutual Divorce Case: In this form of divorce, both the husband and wife willingly agree to end their marriage. They may sign a Mutual Divorce Deed and send a written notice under Section 8 of the Muslim Family Law Ordinance to the concerned government office. However, before issuing the dissolution of marriage certificate, the government office is duty-bound to follow the procedure of issuance of notices.
Wife’s Right of Divorce or Talaq: If a husband has unconditionally delegated the right of divorce to his wife in the marriage contract or the nikahnama (marriage certificate), then the wife can also dissolve the marriage unilaterally. However, if such right of divorce is not given or mentioned in the nikahnama, the wife can still apply for khula (divorce initiated by the wife) in the Family Courts of Pakistan.
Judicial Khula: Judicial khula may be granted without the husband’s consent if the wife is willing to forgo her financial rights, in accordance with the Dissolution of Muslim Marriages Act 1939.
At the time of filing the khula suit, the wife may need to waive off her haq mehr (dower amount) if it has not been paid. However, items gifted to the wife by the husband or the husband’s family do not necessarily have to be returned. The court decides the amount and items to be returned based on the facts and evidence presented in the case. The wife’s failure to pay back such items does not render the khula ineffective, but the husband may have to file a separate suit for the recovery of the gifted items.
After hearing the case, the Family court issues a decree and sends a notification to the Chairman of the Arbitration Council or Union Council. They proceed with the notice of Talaq, and once a period of 90 days is over, the Khula becomes effective.
These forms of divorce provide couples with an amicable and efficient way to end their marriage without the need for prolonged court proceedings. By empowering both parties to dissolve their marriage mutually, Pakistani law recognizes the importance of giving couples the freedom to make decisions about their own lives and relationships.
Applicable statutes in Pakistan to Marriage, Divorce, Separation, Custody of children and Maintenance to spouse and/or children include the following:
• Guardians and Wards Act 1890
• Child Marriage Restraint Act 1929
• Dissolution of Muslim Marriages Act 1939
• Muslim Family Law Ordinance 1961
• (West Pakistan) Muslim Personal Law (Shariat) Application Act 1962
• (West Pakistan) Family Courts Act 1964
• Offence of Zina (Enforcement of Hudood) Ordinance 1979
• Law of Evidence (Qanun-e-Shahadat) Order 1984
• Enforcement of Sharia Act 1991
• Dowry and Bridal Gifts (Restriction) Act 1976
• Prohibition (Enforcement of Hudood) Order 1979
• Offence of Qazf (Enforcement of Hudood ) Order 1979
• Execution of Punishment of Whipping Ordinance 1979
Connected Issues :
- Child marriage has been a longstanding problem in Pakistan, but efforts have been made to curb this practice through the Child Marriage Restraint Act of 1929. According to this Act, the minimum age of marriage for a male is 18 years, while for a female, it is 16 years. Despite the penalties associated with under-age marriages, such unions are not rendered invalid.
- The Role of Guardians in Marriage: In Islamic law, the consent of a guardian or wali is traditionally required for a woman’s marriage. However, the Hanafi School allows adult women to contract their marriages without the need for a wali’s consent.
- The Muslim Family Laws Ordinance of 1961 introduced crucial reforms related to the registration of marriages. Failure to register marriages can lead to penalties of fines and imprisonment. Nevertheless, Muslim marriages remain valid and legally recognized as long as they are performed in accordance with Islamic requirements.
- The Muslim Family Laws Ordinance of 1961 also introduced reforms concerning polygamous marriages. To contract a polygamous marriage, a husband must submit an application and pay a prescribed fee to the local union council. The chairman of the union council then forms an arbitration council to assess the necessity of the proposed marriage, with representatives from both the husband and existing wife/wives.
- Obtaining the consent of the existing wife or wives is a crucial requirement for polygamous marriages. Contracting such a marriage without prior consent can lead to penalties of fines and imprisonment. Moreover, the husband becomes obligated to make immediate payment of dowry to the existing wife or wives. However, even if consent is not obtained, the subsequent polygamous marriage remains valid.
- These legal measures aim to address various issues surrounding marriage practices in Pakistan, including under-age marriages and polygamous unions. While the laws provide some level of protection and regulation, societal norms and cultural practices continue to influence marriage customs in the country. Further efforts and awareness are needed to fully eradicate harmful practices and ensure the protection of individuals’ rights in marriages.
- Reforms in Divorce (Talaq) Under The Muslim Family Laws Ordinance (MFLO): The Muslim Family Laws Ordinance (MFLO) in Pakistan has introduced limited reforms in relation to divorce (Talaq) procedures. According to the MFLO, a husband who intends to divorce his wife must, without delay, give a written notice of divorce to the chairman of the Union Council. This notice must be supplied to the wife as well. Failure to comply with this requirement can result in penalties, including imprisonment and/or a fine.Upon receipt of the notice of divorce (Talaq), the chairman of the Union Council must take prompt action and constitute an Arbitration Council within thirty days. The primary purpose of this council is to mediate and attempt to bring about reconciliation between the husband and the wife.If reconciliation efforts fail and the divorce (Talaq) is not revoked either explicitly or implicitly during this period, the divorce becomes effective after ninety days from the date on which the notice of repudiation was first delivered to the chairman.However, there is an exception to the 90-day waiting period if the wife is pregnant at the time of the pronouncement of the divorce (Talaq). In such cases, the divorce (Talaq) does not take effect until either ninety days have elapsed or the end of the pregnancy, whichever is later.These reforms aim to introduce a more structured and regulated process for divorce (Talaq) in Pakistan, giving importance to reconciliation attempts and ensuring that divorces are not pronounced hastily or without proper consideration. The MFLO seeks to protect the rights and interests of both parties involved in the dissolution of marriage and promote fair and just procedures in divorce cases.
- In the past, failure to notify divorce (Talaq) in the manner prescribed by The Muslim Family Laws Ordinance (MFLO) would invalidate the divorce until the late 1970s and early 1980s. However, with the introduction of the Zina Ordinance, the situation changed, and this led to potential abuse of the divorce process. Before the Zina Ordinance, if a husband did not follow the notification procedure as provided under the MFLO, the divorce would be considered invalid. This measure was put in place to protect women from being arbitrarily divorced without proper notice, ensuring they had sufficient time to understand the situation and potentially seek reconciliation.However, with the introduction of the Zina Ordinance, repudiated wives were left vulnerable to accusations of zina (adultery) if their husbands had not followed the MFLO’s notification procedure. This legal situation provided an opportunity for some husbands to misuse the law to discredit and harm their former wives.As a consequence, the practice of the courts in Pakistan began to change in the early 1980s. They started to validate divorces (Talaq) even if the notification procedure prescribed by the MFLO had not been followed. This shift aimed to prevent potential misuse of the law and to protect women from unjust accusations.By validating divorces despite the failure to notify, the courts aimed to uphold the spirit of fairness and justice. This change in practice recognized that adherence to procedural requirements should not be the sole determinant of a divorce’s validity. Instead, the courts focused on the substantive intent of the parties involved and sought to protect women’s rights while allowing for a more practical approach to divorce proceedings.It is essential to understand that these legal developments reflect changes in societal attitudes and the evolving understanding of women’s rights and protections in the context of divorce (Talaq) in Pakistan. As laws and practices continue to evolve, the aim is to strike a balance between upholding Islamic principles and safeguarding the rights and dignity of women in the country.
Judicial Divorce / Khula and Notice to Heirs in Case of Unknown Husband’s Whereabouts
In Pakistan, under the Dissolution of Muslim Marriages Act 1939, judicial khula (divorce initiated by the wife) may be granted without the husband’s consent if the wife is willing to forgo her financial rights. This provision allows women to seek divorce through the courts even if their husbands are unwilling to grant them khula.
When the husband’s whereabouts are not known, the following procedures are followed:
I. The names and addresses of the persons who would have been heirs of the husband under Muslim Law if he had died on the date of the filing of the plaint (legal complaint) are stated in the plaint.
II. Notice of the divorce suit is served on these persons, giving them an opportunity to be heard in the suit.
III. It is important to note that even if the paternal-uncle and brother of the husband are not heirs, they must still be cited as parties in the suit.
Furthermore, it is specified that the renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam does not, by itself, dissolve her marriage. However, after such renunciation or conversion, the woman is entitled to obtain a decree for the dissolution of her marriage on any of the grounds for divorce provided under the law. This provision ensures that a woman’s change of faith does not automatically terminate her marriage, but she still has the right to seek divorce if she wishes to do so based on valid grounds.
It is essential to recognize that these legal provisions are in place to protect the rights of women in divorce proceedings and ensure that their interests are safeguarded in case of unknown whereabouts of the husband or changes in personal beliefs. These laws aim to uphold fairness and justice in family matters and provide women with the necessary legal avenues to seek divorce and dissolution of their marriages when needed.
Under Shia Law, a divorce (talaq) must be pronounced orally in the presence of two competent witnesses to be considered valid. If a divorce is communicated in writing, it is not considered valid unless the husband is incapable of pronouncing it orally.
In Shia Law, the presence of witnesses is a crucial requirement for a divorce to be considered legitimate. When both spouses are governed by Shia Law, the husband must verbally pronounce the divorce in the presence of two competent witnesses for it to be recognized as valid.
The emphasis on oral pronouncement and the presence of witnesses is to ensure transparency and authenticity in the divorce process. It prevents arbitrary or unilateral divorces and protects the rights of both parties involved. Shia Law aims to uphold fairness and justice in matters of divorce and considers the oral pronouncement in the presence of witnesses as an essential element for the validity of the divorce.
Effectiveness of talaq/divorce under Muslim Family Laws Ordinance, 1961:
Pronouncement in accordance with Muslim Law: The husband must verbally pronounce the talaq/divorce in any form according to Muslim Law.
Service of Notice on Chairman: After pronouncing the talaq/divorce, the husband must give written notice of the divorce to the Chairman of the Union Council. This notice informs the Chairman about the divorce and initiates the legal process.
Service of copy of Notice on wife: Along with giving notice to the Chairman, the husband must also provide a copy of the notice to the wife. This ensures that the wife is aware of the divorce proceedings and has the necessary information.
Failure to fulfill any of these conditions will render the talaq/divorce ineffective, even after 90 days. The procedure ensures a fair and transparent process for divorce and allows time for reconciliation between the parties through an Arbitration Council.
The Chairman of the Union Council is responsible for forming an Arbitration Council within thirty days of receiving the notice to attempt reconciliation between the husband and wife. If the wife is pregnant at the time of the talaq/divorce, the divorce does not become effective until the end of the pregnancy or the 90-day period, whichever is later.
It is crucial for the husband to give notice to the Chairman, as the talaq/divorce’s effectiveness is calculated from the date of notice to the Chairman and not the date of pronouncement. However, if the Chairman fails to perform their statutory duties, the divorce will still become effective after the 90-day period, regardless of their actions.
Example of marriages not falling under Pakistani Divorce Law
When a marriage between a Muslim domiciled in Pakistan and an English woman domiciled in England is solemnized as a civil marriage at a Registrar’s office in London, it falls under the category of a Christian marriage according to English Law. In such cases, the Muslim husband cannot dissolve the marriage by simply handing a Talaqnama or Divorce Deed to the wife, as that method is specific to the dissolution of Muslim marriages under Mohammedan Law.
The reason for this is that a Christian marriage, as recognized by English Law, is a voluntary union for life between one man and one woman to the exclusion of all others. It is not considered a marriage in the sense of Muslim (Mohammedan) law, which allows for polygamous marriages and has its specific methods of dissolution.
In the eyes of English Law, a Mohammedan marriage (Muslim marriage) is not always regarded as a valid marriage for certain purposes, as it allows for polygamy, which is not recognized under English Law. However, this distinction no longer applies if the wife, who originally had a Christian marriage, converts to Islam. In such a case, her marriage is then recognized as a Muslim marriage, and the husband can use the appropriate methods under Mohammedan Law, like pronouncing Talaq, to dissolve the marriage.
It is essential to consider the legal implications and recognition of marriage under the respective laws of the countries involved to ensure the proper dissolution of a marriage and the rights of both parties.
Release of dowry
The divorce obtained through khula’ or mubara’at operates as a release by the wife of her dower (mehr). This means that the wife, by seeking khula’ or mubara’at, is waiving her right to claim the dower amount specified in the marriage contract. However, the divorce does not affect the husband’s liability to provide maintenance for the wife during her iddat (waiting period after divorce) or to support his children from the marriage.
Procedure when a marriage is dissolved by a decree of the Family Court
When a marriage is dissolved by a decree of the Family Court, the court is required to send a certified copy of the decree to the appropriate Chairman (of the Union Council) by registered post within seven days of passing the decree. This is similar to the procedure for talaq/divorce under the Muslim Family Laws Ordinance, where notice must be given to the Chairman of the Union Council.
Upon receipt of the certified copy of the decree, the Chairman proceeds as if he had received intimation of talaq/divorce required under the Muslim Family Laws Ordinance. The talaq/divorce, whether obtained through khula’ or mubara’at or by other means, becomes effective after 90 days of such intimation to the Chairman. This waiting period allows for reconciliation or any other legal action to be taken if needed.
It is important to note that if the decree for dissolution of marriage has been obtained by the wife on her suit (i.e., through khula’ or mubara’at), it is necessary for the wife to independently inform the Chairman of the Union Council about the decree. Additionally, she must also send a notice of the decree to the husband in a formal manner to ensure proper legal procedure is followed.
Overall, the process of divorce through khula’ or mubara’at has legal implications, and certain formalities need to be adhered to for the divorce to be recognized and effective under the law.
Overseas Pakistanis and Jurisdiction of Pakistani Court on Khula/Divorce
Regarding jurisdiction for overseas Pakistanis who concluded marriages under the law of Pakistan in respect of divorce proceedings, it is argued that the Pakistani courts have jurisdiction to adjudicate on such matters. The basis of this argument lies in the applicability of the Muslim Family Law Ordinance, 1961 (MFLO) to all Muslim citizens of Pakistan, regardless of their current residence.
According to Section 1(2) of the Muslim Family Law Ordinance, 1961, the law applies to all Muslim citizens of Pakistan, wherever they may be. This means that even if one of the spouses is residing in the United Kingdom (or any other country), they are still subject to the provisions of the MFLO.
The argument further states that the parties have to resolve their divorce matters through the Family Courts established under the West Pakistan Family Courts Act, 1964, in accordance with the provisions of the MFLO and the Dissolution of Muslim Marriages Act, 1939. These laws govern marriages that were solemnized in Pakistan or abroad by Pakistani citizens according to Islamic tenets.
The view is supported by various court cases, such as the cases cited, which have upheld the applicability of the MFLO to Pakistani citizens residing overseas unless they expressly relinquish their Pakistani citizenship.( 2005 CLC 481 which states that in absence of express relinquishment of Pakistani Citizenship, both the parties would continue to fall within the ambit of Section 1(2) of MFLO 1961. Similar views in 2002 CLC 1744, 1998 MLD 85 and 2009 YLR 2341)
In essence, the argument suggests that Pakistani courts have jurisdiction over divorce proceedings involving overseas Pakistanis if their marriage was conducted under the law of Pakistan and they have not formally relinquished their Pakistani citizenship. Therefore, any divorce matters should be addressed in the Pakistani Family Courts in accordance with the relevant laws.
The argument presented emphasizes that all marriages solemnized by Pakistani citizens under Muslim Law, whether in Pakistan or abroad, are required to be registered with the relevant Union Council as mandated by Section 5 of the Muslim Family Law Ordinance, 1961 (MFLO).
According to Section 5 of the MFLO, every marriage solemnized under Muslim Law must be registered in accordance with the provisions of the Ordinance. This registration is considered mandatory for Pakistani citizens, and failure to comply with this requirement may have legal implications.
Furthermore, it is asserted that Pakistani citizens are obliged to follow the specific provisions of the MFLO 1961 and the Family Court Act 1964 when seeking dissolution of their marriages, including divorce and khula. Under Muslim Personal Law, the right to pronounce divorce lies with the husband, and he can exercise this right without resorting to any court proceedings. On the other hand, khula is the right of the wife, and she can apply for it before a Muslim judge.
Rule 6 of the West Pakistan Family Courts Rules, 1965, is also cited to highlight that the Family Court, established under Section 3 of the West Pakistan Family Courts Act 1964, has exclusive jurisdiction to hear suits for the dissolution of marriage.
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