Divorce Laws in Pakistan

A marriage between a Muslim couple is a social/legal contract, as has been observed by the Supreme Court of Pakistan while rendering several different judgments on marriage disputes. Just like any other contract, the parties to the contract are at free will to repudiate the same after paying compensation to the other party Compensation in the case of marriage is referred to as dower (Haq Meher). According to shariat law as enforced in Pakistan, however, a husband can dissolve marriage after pronouncement of Talaq to her wife.. If a wife is allowed the right to divorce her husband with mutual consent from both parties, and this term is mentioned in the Nikahnama (Islamic marriage contract), she can end the marriage by pronouncing Talaq (a declarative statement of intent to divorce). However, if the right to divorce is not given to the wife in the Nikahnama, she can still dissolve the marriage through Khula (a wife- initiated divorce) by recourse to a Qazi (Islamic judge). This right has been historically exercised when the husband has failed to divorced his wife.

Pakistani law has devolved the power to grant divorces to special courts called Family Courts. Therefore, it is in the best interest of a wife to approach the Family Court for a dissolution of marriage through the best divorce lawyers in Lahore. These lawyers will help her obtain a divorce on the grounds of khula.

Burhan & Associates is the best law firm in Lahore and our divorce lawyers are the best in the city. When filing a divorce case, we take special care to protect our client's interests. This includes custody and maintenance of minors, schedule meetings with the minors, recovery of dower (Haq Meher), and recovery of dowry articles, personal belongings, and gifts as the case may be. We understand that all of these matters are interconnected and we will do everything we can to ensure a favourable outcome for our client. There are several methods that can be used to get a divorce in Pakistan. Some of the most common methods include:

1. Divorce (Talaq) by Husband

2. Mutual Divorce by Husband and Wife

3. Divorce on the legal principle of Khula by Wife

Each method has its own unique set of requirements and procedures, so it's important to consult with a divorce lawyer to determine which one is right for your situation.

DIVORCE (TALAQ) BY HUSBAND

The right of divorce for husbands is provided by Section 7 of the Muslim Family Law Ordinance in Pakistan. This section states that a husband can divorce his wife by pronouncing talaq, or a written divorce, three times. However, the Supreme Court of Pakistan has recently ruled that a husband cannot divorce his wife without pronouncing talaq three times at three different instances. Each Talaq should be served to the wife in written form, with a copy being sent to the Chairman of the Arbitration Council. The Chairman Arbitration Council is required to send 1 notice per month to each party before completion of 90 days for the purpose of attempting reconciliation between husband and wife. If reconciliation is successful and the parties reconcile, then the Talaq will be deemed to be revoked and ineffective. If reconciliation is not possible within 90 days, then the Talaq will be considered effective and the Chairman Arbitration Council will be required to issue a Divorce Certificate, dissolving the marriage.

MUTUAL DIVORCE BY HUSBAND AND WIFE

This Islamic divorce method is when both husband and wife want to end their marriage and come to a mutual agreement. They'll execute a divorce deed and send a copy of it to the Chairman Arbitration Council. This is the most convenient way to get divorced, and it also saves time by avoiding going to court. Our team at Burhan & Associates are experts when it comes to drafting agreements between parties. We always make sure that all terms and conditions are fair and square for everyone involved before moving forward with mediation. We also take into consideration what everyone wants and needs out of the agreement to make sure that everyone walks away happy.

DIVORCE ON PRINCIPLE OF KHULA BY WIFE

The third common method of effectively dissolving the marriage is by going to the Family Court and getting a Decree of Khula. In this case, the wife has to file a suit in the nearest family court in the district where she lives. It's important to note that khula is an Islamic right available to wives who have developed hatred for their husbands. If you're a wife who needs to file for divorce, the process is now simpler than ever. All you need to do is to hire a top divorce lawyer in Lahore and provide him with all the details and documents necessary for preparing a case. You'll only have to appear in court once, for the purpose of identifying yourself before the judge. Even if you don't have your marriage certificate (nikah nama), you can still file for khula with an affidavit, while confirming the date of marriage and the fact that the marriage certificate is in the custody of your husband or any third person. After the case is filed, the wife will submit oral and written evidence in court, if applicable, along with a witness. The court will then announce khula in favor of the wife. The decision by the family court is called the decree of khula. The khula proceedings usually take up to one or two months at most.

Intentionality Requirement

According to a precedent set in 2004 YLR 619 by the Federal Shariat Court and 1993 CLC 219 (LHC), a clear, intentional, and voluntary declaration of talaq is essential. The husband must have the specific intention to dissolve the marital bond; without this intentional release, the divorce is considered invalid.

Communication of Divorce
It is essential that talaq be conveyed to the wife, either verbally or in writing, to ensure clarity and prevent ambiguity
Types of Divorce (Talaq)

1. Talaq-al-Ahsan

In this preferred form, a single declaration of divorce is made during a tuhr (the period between menstruation cycles), followed by abstention from marital relations throughout the iddat period. This form of talaq is revocable within the iddat period, becoming irrevocable once this period expires. The Muslim Family Law Ordinance of 1961 acknowledges this form as valid under Section 7.

2. Talaq-e-Hasan

Talaq-e-Hasan involves three separate declarations made in consecutive tuhrs, with no marital relations established during this period. Revocation is possible after the first and second declarations, but after the third, the divorce becomes final.
3. Talaq-e-Biddat

This form of divorce, which consists of either three declarations in a single tuhr or a single declaration indicating a final and irrevocable divorce, is considered immediate and binding.
4. Delegated Divorce

Here, the husband empowers the wife to pronounce talaq upon herself, granting her the same rights to initiate the divorce as if it had been declared by the husband.
5. Talaq-e-Mubarat

This is a mutually agreed-upon divorce where both spouses consent to dissolve the marriage and all associated obligations.

Procedure for Divorce (Talaq) in Pakistan

For a Pakistani Muslim citizen residing in Pakistan, divorce procedures are governed by the Muslim Family Laws Ordinance, 1961, which mandates three essential steps:

1. Declaration of Talaq

The divorce must be pronounced following the requirements set by Muslim Law.

2. Notice to the Chairman

A written notice of the divorce must be provided to the Chairman of the Union Council where the wife resides, with a copy sent to the wife.

3. Service of Notice to Wife

The copy of the notice must also be served to the wife to formalize the proceedings. The divorce procedure under Section 7 of the 1961 Ordinance is as follows:

Notice Submission

After pronouncing the talaq, the husband must notify the Chairman of the Union Council, with a copy delivered to the wife.

Legal Penalty for Non-Compliance

Failure to comply with this notice requirement can lead to imprisonment for up to one year, a fine up to five thousand rupees, or both.

Waiting Period

The divorce only becomes effective 90 days after the Chairman receives the notice, unless revoked sooner.

Reconciliation Efforts

Within 30 days of notice receipt, the Chairman establishes an Arbitration Council to attempt reconciliation between the spouses.

If the Wife is Pregnant

If the wife is pregnant, the divorce becomes effective either after the 90-day period or after the pregnancy ends, whichever is later.

Notice to Union Council Jurisdiction

The notice must be given to the Union Council where the wife resides. If she resides outside Pakistan, the jurisdiction falls to the Union Council where she last resided in Pakistan, or where the husband resides if no location can be determined.

Procedure for Divorce for Overseas Pakistanis

For Pakistani Muslims residing abroad, the divorce process aligns with Notification No. S.R.O. 1086(K)/61, dated 8-11-1961, and legal precedents. In cases where both spouses are permanent residents of a foreign country, the Union Council does not have jurisdiction, and the local Pakistani diplomatic mission performs the Arbitration Council’s duties. However, if one spouse is in Pakistan, proceedings can still occur in Pakistan.

Validity and Debate Surrounding Talaq-e-Biddat (Triple Talaq)

A common question surrounding talaq is whether pronouncing divorce thrice in one sitting constitutes an irrevocable triple talaq or if it operates as a single declaration. The practice of Talaq-e-Biddat, or instant triple talaq, has sparked considerable discussion based on interpretations of the Quran, the Sunnah, and Islamic laws across different countries.

Talaq-e-Biddat According to the Holy Quran

The term talaq in Arabic means “to release or untie the knot.” The Quran advocates for marriage preservation rather than abrupt dissolution. In matters of discord, the Quran emphasizes the need for reconciliation: “If you fear a breach between the two, appoint an arbiter from his people and an arbiter from her people. If they both desire agreement, Allah will effect harmony between them.” (Quran 4:35) If talaq is pronounced three times in one instance, it contradicts the Quran’s emphasis on mediation and reconciliation. The Quran prescribes specific guidelines and a waiting period to allow the possibility of resolution: “Those who intend to divorce their wives shall wait four months; if they change their minds and reconcile, then God is forgiver, merciful. If they go through with the divorce, then God is hearer, knower.” (Quran 2:226-227) Further guidance suggests: “And the divorced women must wait for three menstrual courses… and their husbands are fully entitled to take them back (as their wives) during this waiting period, if they desire reconciliation.” (Quran 2:228) The Quran permits two pronouncements of divorce, with the third being final: “Divorce may be pronounced twice; then the wife may either be kept back in fairness or be allowed to separate in fairness. Then, if the husband divorces his wife (for the third time), she shall not remain lawful for him after this divorce, unless she marries another husband…” (Quran 2:229-230) The Quran’s approach to divorce promotes patience and space for reconciliation, thus challenging the concept of triple talaq in one sitting. The chapter At-Talaq elaborates on this: “O Prophet, when you divorce women, divorce them for their prescribed waiting periods, and count the waiting-period accurately, and fear Allah, your Lord…You do not know: Allah may after this bring about a situation [of reconciliation]…” (Quran 65:1-2)

Triple Talaq and the Prophet Muhammad’s (P.B.U.H) Practice

The Prophet Muhammad (P.B.U.H) discouraged the instant triple talaq practice. According to a narration by Abdullah bin Abbas, pronouncing talaq thrice in a single instance was treated as one talaq during the Prophet’s time, continuing through the first Caliph Abu Bakr’s tenure and into the early years of Caliph Umar’s rule (Sahih Muslim, 1482). A notable instance involved Rukanah bin Yazid, who divorced his wife three times in one sitting. Upon regretting his actions, he approached the Prophet (P.B.U.H), who clarified that his triple pronouncement counted as a single talaq, allowing him to reconcile with his wife.

Differences in Interpretation of Triple Talaq Among Islamic Schools of Thought
Islamic scholars have long debated the validity and implications of pronouncing “I divorce you” three times in one sitting. This form, known as Talaq-e-Biddat, is acknowledged by certain Sunni schools, particularly the Hanafi school, although they regard it as a sinful form of divorce. Other schools of thought argue that a triple pronouncement counts as only one divorce.
Rulings on Triple Talaq by Islamic Scholars
Renowned scholar Shaykh ‘Abd al-‘Azeez ibn Baaz (may Allah have mercy on him) addressed the matter, explaining that while some scholars view a threefold divorce as final, making the woman unlawful to the husband until she remarries, others treat it as a single divorce. These latter scholars base their stance on traditions indicating that during the times of the Prophet Muhammad (P.B.U.H.), Abu Bakr, and early years of Caliph Umar’s rule, a triple talaq was considered as one. Caliph Umar later introduced the practice of treating it as three due to misuse of the provision by the people. This more lenient approach, treating triple talaq as one, was also supported by several early scholars, such as Ibn Abbas (may Allah be pleased with him), who narrated that the Prophet once permitted the revocation of a triple pronouncement in a single sitting as one talaq. This position was later endorsed by scholars such as Shaykh al-Islam Ibn Taymiyyah and Ibn al-Qayyim (may Allah have mercy on them), favoring the view for its alignment with core Islamic teachings on compassion and reconciliation.

Divorce Legislation in Pakistan

In Pakistan, the legal framework for divorce is provided under Section 7 of the Muslim Family Law Ordinance, 1961, which specifically discourages the practice of Talaq-e-Biddat and instead prescribes the procedure of Talaq-e-Ahsan (the recommended and most dignified form of talaq). This law enables a divorced couple to remarry without an intervening marriage if the divorce has not been repeated three times.
Section 7 outlines that:
1. The husband must notify the Union Council’s Chairman in writing immediately after pronouncing talaq, providing a copy to the wife.
2. Non-compliance may result in up to one year’s imprisonment or a fine.
3. The talaq becomes effective 90 days after notice submission unless revoked.
4. Within 30 days, an Arbitration Council is to be established to facilitate reconciliation.
5. If the wife is pregnant, the talaq only takes effect post-pregnancy or after 90 days, whichever is later.
Judicial Precedent on Triple Talaq in Pakistan
In a notable ruling, Justice Syed Jamshed Ali (2003 YLR 2623) held that pronouncing three divorces in one instance equates to a single divorce. His judgment drew on the teachings in Surah Al-Baqarah, Surah An-Nisa, and Surah At-Talaq, which emphasize patience and reconciliation in divorce matters. Justice Ali cited historical precedence, highlighting that during the Prophet’s time, Caliph Abu Bakr’s period, and early years of Caliph Umar’s rule, a triple pronouncement was treated as one, a rule Caliph Umar later altered to curb frequent misuse.

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