S. 7—Constitution of Pakistan (1973),—Constitutional petition—Notice of divorce —Reconciliation between the spouses—Forum—Petition was directed against notice received by the petitioner/wife from Chairman Union Council informing her about the notice of divorce served by husband and offering reconciliation proceedings under the Muslim Family Laws Ordinance, 1961—Both the petitioner/ wife and husband were residing abroad and for foreign resident Pakistanis, the law had created a remedy and forum for reconciliation between the spouses under Muslim Family Laws Ordinance, 1961 in the Pakistan Mission in the countries of their residence—Husband should avail that remedy and in case such remedy was not available, then any other competent forum could be approached for relief—High Court directed that husband should approach the Pakistan Mission in the country (abroad) to register the divorce pronounced by him upon the wife and for reconciliation proceedings visualized under Muslim Family Laws Ordinance, 1961 to be undertaken there—Proceedings before Chairman Union Council, in circumstances, were declared to be incompetent.
When husband and wife cannot live happily together within the limits prescribed by Almighty Allah then they can dissolve their marriage through divorce or khula. The husband can pronounce divorce and wife can file a suit for dissolution of marriage and can also pronounce Talaq, if such right has been conferred upon her. Every divorce or khula case has its own facts, circumstances, drawbacks, challenges and solutions.
Q: In Pakistan what are the terms used to identify the parties in a divorce proceeding?
A: The party filing the suit is called the “Plaintiff”, while the other party to the divorce proceedings is referred to as the “Defendant”.
Q: What are the ways marriage can be dissolved in Pakistan?
A: Marriage can be dissolved in any of the given ways i.e. divorce by the husband at his will without the intervention of a court commonly called a “Talaq”; by mutual consent of the husband and wife, without intervention of the court; by a judicial decree at the instance of the court and by the wife in exercise of a contractual right of divorce.
Q. What is meant by “Khula”?
A: Khula is the right of a wife in Islam to seek dissolution of marriage from her husband through intervention of the court. A woman seeks a “khula” while man gives a “Talaq”.
Q. What grounds are available to a wife to get Divorce according to Laws of Pakistan?
A: As per Dissolution of Muslim Marriages Act a woman shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds:
Whereabouts of the husband not known for four years; Husband has neglected or failed to provide maintenance; Husband has sentenced to imprisonment for a period of seven years or upwards; Husband failed to perform marital obligations for a period of three years; Husband was impotent at the time of marriage; Husband has been insane for two years; She was married when she was minor; Husband treats with cruelty; Leads an infamous life; Attempts to force her immoral life; Venereal disease; Incurable form of leprosy; Disposes of her property; Obstructs her in observance of her religious practice; If she cannot live with the husband within the limitation imposed by the Almighty Allah.
Beside above, there are also other grounds available to wife for the dissolution of marriages under Muslim Law.
Q. What is the procedure to obtain “Khula” (dissolution of marriage) in Pakistan?
A: If wife is not delegated the right of divorce in her nikahnama (marriage contract form) then she would apply for khula in the court. When the wife files a suit for dissolution of marriage the court issues notice to the opposite party i.e. the husband and if he fails to appear after the due process of posting and publication the court can proceed with the case ex-parte and pass a decree. In case where the husband or his representative appear he is required to file a written statement following which the court has to fix a date for pre-trial proceedings for reconciliation. If reconciliation fails court will pass decree for dissolution of marriage.
Q. After obtaining khula decree from the court is dissolution of marriage is complete?
A: No, after obtaining Khula decree from the court you need to file an application before the Chairman Arbitration Council/Union Council of your jurisdiction for obtaining dissolution of marriage certificate.
Q: Can a wife be delegated right of pronouncement of divorce?
A: Yes, wife can divorce; if so delegated in the nikahnama (marriage contract form) the said right is called Talak-e-Tafweez (delegated powers of divorce). Husband may delegate right to divorce while contracting marriage as per paragraph 18 of the Nikahnama, then the wife has a right to divorce, otherwise it is the exclusive right of the husband. But if wife has no such right and she wants dissolution of marriage then she can file a suit for the “Dissolution of Marriage” on the basis of Khula or seeks divorce both through intervention of the court.
Q: How would I know where my divorce case will be filed in Pakistan?
A: Your case can be filed where marriage has taken place or where marriage was registered; where the defendant is residing. Wife can also file a case at the place where she ordinarily resides.
Q. Whether overseas Pakistanis wives can get divorce in Pakistan via online?
Q: Can overseas Pakistani file for divorce khula without coming to Pakistan?
A: Yes, but for that her marriage should be registered in Pakistan she can appoint someone through Special Power of Attorney who will represent her on her behalf in the court.
Q: What is the law for custody of children for divorcing couples in Pakistan?
A: Guardian and Wards Act is the law, family court can also entertain suit relating to custody of children according to Family Courts Act 1964. General rule is that the interest and welfare of the minor child should be of paramount consideration.
Q. What are the rights of wife to property after divorce has taken place in Pakistan?
A: The bridal gifts given to wife in dowry/jahez are the exclusive property of wife during or after the marriage. Upon dissolution of marriage wife is also entitled to claim deferred dower and maintenance during the period of Iddat.
Q. What is the procedure husband should adopt to give divorce to his wife in Pakistan?
A. Under the Muslim Family Laws Ordinance any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talaq/Divorce in any form whatsoever, give a notice in writing to the chairman of the Union Council and also send a copy to the wife. Within thirty days of the receipt of notice of Talaq chairman shall constitute an arbitration council for the purpose of bringing about reconciliation between the parties and after expiry of ninety days if reconciliation fails divorce will take effect.
Q. Can husband and wife dissolve their marriage through mutual consent?
A: Yes, they can dissolve their marriage through mutual agreement; the said divorce is called Talaq-e-Mubarat, literal meaning of Mubarat is ‘obtaining release from each other’. The offer for separation in Mubarat may proceed either from the wife or from the husband and as soon as it is accepted dissolution is complete.
Q: Whereabouts of my husband are not known for a long time can I end my marriage?
A: Yes, you can end this marriage under the Dissolution of Muslim Marriage Act 1939 if whereabouts of your husband are not known for a period of four years.
Q: Notice of Talaq sent through Chairman Union Council can it be revoked?
A: Yes, divorce/talaq notice can be revoked before expiry of ninety days from the date on which it was delivered.
Q: How do I protect myself from harassment by my spouse and his or her family members?
A: If you find yourself threatened, assaulted etc. by your spouse you may file a complaint at the police station against your spouse.
Q: I have applied for a divorce, is it safe now to go for new marriage?
A: You should not plan to remarry until the divorce is finalized.
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