Wife’s Right of Divorce or Talaq Khula
A wife can dissolve her marriage unilaterally only if the right of divorce has
been unconditionally delegated to her by the husband in the marriage
contract or the nikahnama. If such right of divorce is not delegated then in
such circumstances wife can dissolve her marriage by apply for Khula from
the Family Courts of Law, which is also known as dissolution of marriage by
way of judicial divorce.
Therefore if the wife is not delegated the right of Divorce in her
nikahnama then she would need to apply for Khula. Khula, which literally
means ‘untying the knot’, is the dissolution of marriage initiated by the wife
and is granted by the court. To apply for Khula the wife would need to file a
suit for Khula in the Family Court under the West Pakistan Family Courts
Ordinance, on the grounds that she feels she can no long live with her
husband “within the limits prescribed by Allah’ and such a statement on oath
made in her suit would be sufficient to establish her case for Khula.
Dissolution of Muslim Marriages Act 1939
Judicial khula may also be granted without the husband’s consent if the wife
is willing to forgo her financial rights.
Grounds for Judicial Divorce
Grounds on which a woman may seek khula include:
Desertion by husband for four years,
Failure to maintain for two years
Husband contracting a polygamous marriage in contravention of
established legal procedures,
Husband’s imprisonment for seven years,
Husband’s failure to perform marital obligations for three years,
Husband’s continued impotence from the time of the marriage
Husband’s insanity for two years or his serious illness
Wife’s exercise of her option of puberty if she was contracted into
marriage by any guardian before the age of 16 and repudiates the
marriage before the age of 18 (as long as the marriage was not
Husband’s cruelty (including physical or other mistreatment, unequal
treatment of co-wives),
Any other ground recognised as valid for the dissolution of marriage
under Muslim laws
The Family Court will issue decree and send notification to Union Council
which proceeds as if it received the notice of Talaq and once the iddat period
of over the khula becomes effective.
At the time of filing of Khula suit the wife usually has to return haq mehr and
other benefits received from husband as zar-ikhula, gifts received from
husband’s family do not have to be returned court decides how much & what
is to be returned on the facts of the case wife’s failure to pay zar-i-khula
does not render khula ineffective
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