Divorce (Talaq / Khula) Under Muslim Family Laws:
The contract of marriage under Mohammedan Law may be dissolved in any one of the following ways:
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By the husband at his will, without the intervention of a Court;
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By mutual consent of the husband and wife, without the intervention of a Court.
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By a judicial decree at the suit of the husband or wife.
Essentials of a Divorce/Talaq
Divorce Should Be Intentional
The Courts have repeatedly reiterated that a divorce must be a conscious pronouncement to break the marriage bond. The Courts in 2004 YLR 619, Federal Shariat Court, and 1993 CLC 219 (Lahore High Court) have emphatically pointed out that a conscious and deliberate pronouncement of divorce to release the wife from the marriage bond is a necessary and foremost requirement of divorce. Therefore, in the absence of this essential element of intention to remove the wife from the marital bond, no divorce can be said to take effect.
Partners Should Communicate Divorce
The husband should communicate divorce to the wife. This communication can either be made orally or in writing.
Procedure of Divorce
The Muslim Family Law Ordinance, 1961 (the “Ordinance”) lays out a proper procedure by which divorce is effected. The Ordinance does not recognize verbal divorce. Hence, the husband must give adequate notice to make the divorce legal. Otherwise, the divorce is deemed ineffective as per law.
Who sends the Divorce Notice?
The notice of divorce is to be sent by the husband. A wife cannot send a divorce letter to her husband because she does not have the right to divorce her husband. If the wife wishes to obtain a divorce, she would have to apply for judicial divorce on some particular grounds in family court. Then the court will send the notice to the husband to appear before the court in a divorce. The wife can get a divorce decree if the court proves her case.
Islamic Procedure of Divorce / Talaq in Pakistan
According to Muslim Family Laws Ordinance, 1961, to give effect to talaq/divorce, their steps are to be followed:
Send Divorce Notice
A divorce has to be pronounced by the husband in any form, either oral or written. After such pronouncement, a written notice is sent to the wife.
Under the Muslim Family Law Ordinance of 1961, the husband must send a written divorce notice to his wife.
Service of Notice upon the Union Council
To send a divorce notice to the wife, the husband will give notice of divorce pronouncement in writing to the Chairman of the concerned Union Council or any other Government office Incharge by registered post where his wife is residing at the time of divorce. The Union Council or Government office in charge will issue the divorce certificate afterward. Such notice to the Chairman of the Union Council shall be provided under Section 7(1) of the Ordinance.
Service of the Copy of Notice upon Wife
The husband must mention the valid address of his ex-wife on the divorce notice. The Union Council or the government office will issue notifications in the ex-wife’s name on that address.
Constitution of Arbitration Council
Within thirty days of receiving the notice from the husband, the Chairman of the Union Council shall constitute an Arbitration Council to bring about reconciliation between the husband and wife, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
Issuance of Divorce Certificate
Suppose the Arbitration Council constituted by the Chairman fails to bring about reconciliation between the husband and wife. In that case, the Union Council or the Government office in charge shall issue the divorce certificate after 90 days of the service of notice by the husband to the Union council. The Divorce Certificate shall be issued after 90 days during the Iddat period of the wife. This certificate makes the divorce effective for the husband and wife.
When is Divorce Applicable?
A Talaq / Divorce, unless revoked earlier expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice is delivered to the Chairman of the Union Council. During the 90 days, the husband and wife can at any time reconcile, and no divorce shall be effected in these 90 days.
Divorce In Case the Wife Is Pregnant
If the wife is pregnant when the husband pronounces the divorce, the divorce shall not be effective until the end of the wife's pregnancy or the delivery of the child. However, suppose the pregnancy ends earlier than the 90-day notice period to the Chairman. The divorce shall take effect after the end of the 90-day notice period by the Chairman of the Union Council.
Re-Marriage With The Ex-wife
Section 7(6) of the Ordinance provides that:
“Nothing shall debar a wife whose marriage has been terminated by talaq/divorce effective under this section from remarrying the same husband, without an intervening marriage with a third person unless such termination is for a third time so effective.’’
Therefore, a wife whose husband has divorced can marry the same husband after the divorce, but an intervening marriage of the wife with any other man shall follow this marriage.
Some Criticism of Section 7 of the Ordinance
According to the Federal Shariat Court of Pakistan, some provisions of Section 7 of the Ordinance are unclear and un-Islamic. The Federal Shariat Court has stated that the 90-day period starts from the notice to the Chairman and not from the actual pronouncement of divorce by the husband; this provision is wholly un-Islamic. Also, what will happen if the husband fails to notify the Chairman of the divorce? Keeping in line with these reservations, the Shariat Court has directed a revision in these provisions.
