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Abdul Azeem
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What is Divorce in Pakistan?
Divorce in Pakistan Can be in one of 5 ways, that are recognized in Pakistan. Talaaq in Pakistan (and Islam) is the word that means the ultimate termination of the Marriage.
Essentially, a Marriage is a contract between 2 parties (Husband and Wife) that they will remain in Wedlock with one another. Should any problems arise, both will always have a right to end the contract. Divorce is merely the exercise of this right, in an Islamic Marriage.
Nowadays, It is statistically more likely for a Marriage to end in Divorce than to last forever. Although our society doesn’t discuss this openly, and it is currently a taboo subject, it affects millions of people every day.
We will discuss this matter in-depth, as well as the limitations and consequences of Divorce in Pakistan, as well as the Legal and Financial Implications of Talaq.
Who has the right to give the Divorce?
An Islamic Marriage (Nikah) is a contract. Just like a contract, the ability to end a contract is a vital part of an enforceable contract. It is an inherited social myth that only a man can give a divorce. Although it is statistically accurate that the man usually gives the Divorce, women have the right to divorce also.
During Nikkah, the wife can be delegated the right of divorce (known as “Talaq e Tafweez“). If she has this right (mentioned in the nikahnama), then she is also able to pronounce divorce the same way the Man/Husband can (without having to file for a khula). If the woman does not have this right (whether she was unaware of it at the time, under social pressure, or didn’t ask for it) then she may still end the marriage, even if she is abroad, through Khulla online. If a couple or any of the parties in the marriage wish to resolve their marriage with Judicial Assistance, they can always file a case for Restitution of Conjugal Rights.
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The Laws of Divorce in Pakistan
As Pakistan is an Islamic state, the jurisprudence of the law stems from Shariat (Islamic Law). Let’s see the various quotes in Islam and the Quran to understand the Principles and Ethics of Divorce.
” Of all the permitted acts, divorce is the most abominable by the Almighty Allah.”
Hadith – Hazrat Muhammad (S.A.W)
By Pakistani Law, Pronouncing Talaaq is the power that the husband (or wife, who has been assigned this right as per their nikkah-nama) may, at any time, release the other party from the marriage by Pronouncing “Talaaq” (I Divorce You) 3 times.
Divorce in Pakistan reliance on (Verse 130 Chapter 4 of the Holy Quran) “If they disagree and must part ways, Allah the Almighty will provide abundance for all, from His all-reaching bounty. For Allah cares for all and is wise.” Divorce in Pakistan reliance on The Holy Quran; Chaper 4 Verse 130
In the religious context, it is the most hated thing one is allowed to do in Islam. Islam is a religion of peace and harmony, so wherever hatred has started to develop (even at the embryonic stages) one can exercise to en the relationship rather than allowing toxicity to spread.
The Legal Framework that covers Divorce is (But in no way limited to) the following:
- 1979 Hadd-e-Qazaf Ordinance (referred to as HQO)
- 1965 West Pakistan Family Courts Rules (referred to as WPFCR)
- 1964 West Pakistan Family Courts Act (referred to as WPFCA)
- 1962 The West Pakistan Muslim Personal Law, Shariah Application Act (referred to as WPMPLSAA)
- 1961 Reconciliation Courts Ordinance (referred to as RCO)
- 1961 Muslim Family Laws Ordinance (referred to as MFLO)
- 1961 Muslim Family Law Rules (referred to as MFLR)
- 1939 Dissolution of Muslim Marriage Act (referred to as DMMA)
- 1929 Child Marriage Restraint Act (referred to as CMRA)
- 1890 Guardian and Wards Act (referred to as GWA)
How does a Divorce in Pakistan happen?
If initiated by the Husband (or a wife who has the right stipulated at the time of marriage) to the other spouse it is termed “Talaaq.” When a Wife (who has not been designated the provision of Talaaq) wishes to end the Marriage she has to file for Khula.We offer both of these services, via our online divorce page, as well as consultations on the best procedure to follow, depending on your circumstances.
The 5 Different Types of Divorce Processes in Pakistan
The regular means and methods for divorce (or for its pronouncement ) are
- Oral Divorce
- This is where the Husband (Or the wife who has the right of Talaaq) Pronounces Talaaq (I Divorce You) in front of witnesses and the receiving Spouse.
- It is the Duty of the Spouse giving the divorce to inform the Union Council, so they may register the divorce as per their procedure with a divorce notice.
- Here, the consent of the other party is unnecessary and not required to proceed and conduct the divorce.
- Written Divorce
- This is where a Divorce Notice is issued from the Husband (Or the wife who has the right of Talaaq) to the receiving spouse.
- Witnesses are required to sign the Divorce Notice, and the Divorce notice (aka Divorce deed) is then sent to the Receiving Party at her known address and/or current address.
- It is the sole responsibility of the Divorcing Spouse to inform the Divorcee Spouse and to inform the Union Council (Where the Marriage was registered) so they may acknowledge the Divorce and continue with their proceedings to register the Divorce.
- Here, the consent of the other party is unnecessary and not required to proceed and conduct the divorce.
- Mutual Divorce
- The technical and Islamic word for this is “Talaq-e-Mubarat“.
- This is where all factors of the relationship (Dower, Dowery, Jehz, Haq Mehr, Recovery of Benefits, Spousal Maintenance (Alimony), Guardianship, Child Custody, and Child visitation are pre-determined and agreed upon between both parties (Husband and Wife) and the Marriage is Mutually Concluded.
- The Agreement is then written down and signed by witnesses.
- Although going to court is unnecessary, you may approach the court to record the agreement before a judge.
- Here, the consent of both parties is essential and required to conduct the mutual divorce.
- Khula
- In the absence of the right of Talaaq (“Talaq-e-tafweez“), a woman would have to file a suit to dissolve her marriage (Khulla is the dissolution of Marriage).
- As per the latest Supreme Court Ruling, the maximum time for the divorce to take place is 6 months.
- Even if a Khulla is filed with a list of other cases (Such as Child Custody, Guardianship, Recovery of Jehz, Dowery and Spousal maintenance) the khula will be (and should be) awarded in the first instance as a priority, whilst the other cases may remain ongoing.
- When going through Khula, a woman foregoes her Spousal Maintenance and has to return part of her Mehr.
- Here, the consent of the husband is unnecessary and not required to proceed and conduct the divorce from the woman’s side (khula).
- Khulla is legally considered a divorce, although it is given the status of a single talaq. That means both parties could re-marry afterward, and not have to perform a nikkah again.
- Annulment
- This is when one party/spouse is absent, and the other party/spouse wishes to end the marriage.
- This form of Divorce is also known as a Judicial Divorce, as it requires detailed Court Intervention, as opposed to a Khula.
- An annulment is an invalidation of marriage on the grounds of
- A spouse is missing for over 4 years.
- The husband is unable to Financially sustain the Partner/Family for over 2 years.
- A Spouse being incarcerated for over 7 years.
- A Spouse is not able to fulfill their marital obligations (i.e. Sexual requirements) for 3 years.
- If a spouse was impotent at the time of marriage.
- A Spouse being mentally unfit.
- The Spouse seeking annulment will not forego their Haq Mehr or Spousal Maintenance (if any).
- As a judicial proceeding will ensue, consent from the other spouse is not required.
The Different Types of Talaq
“Talaq e Mubarat” is a Mutual Divorce.
“Talaq-e-Sunnat” and “Talaq-ul-Raje” are the first 2 revocable divorces that can be pronounced in both forms mentioned below.
The most acceptable Divorce, thus most Practiced, is “Talaq-e-Hasan”. This is the ‘proper’ form of talaq in the eyes of the law. In this form, three different pronouncements of talaq are made by the Divorcer at consecutive monthly intervals.
“Talaq-e-Ahsan” is when the Divorcer Pronounces “I have divorced thee” once and the couple then observes iddat (which is counted as 3 consecutive months). If the couple rekindles their relationship within these 3 months, then they inform the Union Council of their reconciliation. If they do not, the Marriage is then dissolved.
This form of talaq can be revoked before the third pronouncement of divorce but is final after the third announcement of Divorce.
“Talaq e Tafweez“ is a delegated divorce given to the wife at the time of marriage.
“And if a woman fears from her husband contempt or evasion, there is no sin upon them if they make terms of the settlement between them. A settlement is best. And present in [human] souls is stinginess. But if you do good and fear Allah – then indeed Allah is ever, with what you do, Acquainted.”
The Glorious Qur’an, Chapter 4 Verse 128
“Talaq-e-Biddat” or “Talaq-ul-Bain” is very controversial in our society as a form of Divorce. If contested, it can be considered as one divorce (as opposed to three consecutive talaaqs). It has been outlawed in India, and, for the time being, is not outlawed in Pakistan.
A) Single Irrevokable Talaq: If the husband says to his wife ”I Divorce You Irrevokable” It is enough an irrevokable Talak.
B) Triple Irrevokable Talaq: If the husband says to his wife” I Divorce You, I Divorce You ,I Divorce You.” or says only that” I Divorce You Thrice ”, It is sufficient and irrevocable
CASE LAW: Ahmad Giri v/s Mst. Bigha AIR 1995
Can a Talaq Divorce in Pakistan Happen online or Abroad?
The short answer is, Yes, depending on the Specific Circumstances around the Marriage.
Sometimes, due to the messy nature of divorce, a party (Husband or Wife) may not wish to face the other party (i.e. citing safety fears or concerns) who may elect to give a trusted person the Special Power of Attorney to represent them on their behalf.
If the marriage is registered (and has happened in) Pakistan, then the divorce can take place whilst the Husband and/or wife is abroad.
We have a Special Service that offers special Legal Services to Overseas Pakistanis through our Online Divorce portal.
The Holy Qur’an never intended a divorce to act as a device of instant magic whereby a woman taken by a man to share his life with all its pleasures, sorrows, sufferings and happiness is made to disappear for all times to come from his home and heart
2003 YLR 2623
Conditions of Divorce
Divorce in Pakistan can be executed if the person executing the Divorce (Divorcer) is doing so out of his free will. If the Spouse pronouncing the Divorce is under duress to do so, it will be considered an invalid Divorce.
Another Condition of a divorce being implemented (Divorce or Khula) can only be implemented if the wife/woman is not pregnant at the time of Pronouncing the Divorce.
Grounds for Divorce
Being a subject of Domestic Violence, Alcoholism, Drug Abuse, Mental Torture, Defamation in Society/Within the Family, not maintaining the family, being ill (to the point that the other spouse cannot handle it), and being infertile are other factors that can be claimed to be grounds of divorce.
Dower, Dowery Articles and Jehz
Dower and Dowry Articles (Known commonly as “Jehz”) are usually a feudal point in any divorce case. The smallest things are brought up, so it’s important to consider this factor.
Where the woman (wife) receives the divorce, she can apply for 3 months of Spousal Support (alimony). She can also file a lawsuit for retrieving her Marital Gifts, Jehz, Haq Mehr (if unpaid). In return, the husband may ask for his “Benefits” to be recovered.
In the Instance of a man (husband) receiving a khula (or a divorce notice) from his wife, he may file a lawsuit for “Recovery of Benefits” and a partial return of the Paid Haq Mehr.
It is important to note that if a fake case is lodged, then the victim can file a counter-suit for Malicious Prosecution. As well as possibly other civil and criminal charges.
Financial Maintenance and Spousal Support (Alimony)
Spousal support (Alimony) is the amount of money paid from one spouse to another. In Divorces in Pakistan, it is almost always the man paying the wife. The reference from the Qur’an on this matter is as follows.
The period a woman can claim alimony (spousal maintenance) is 3 months, to cover the period of iddat. This is usually calculated on the male’s disposable income/monthly earnings. The reference can be found in the next verse.
“Let a man of wealth spend from his wealth, and he whose provision is restricted – let him spend from what Allah has given him. Allah does not charge a soul except [according to] what He has given it. Allah will bring about, after hardship, ease. “
The Holy Quran, Chapter 65, verse 7
When a woman files for khula, this amount is usually not due; as she is leaving the marriage on her own accord.
“Lodge them [in a section] of where you dwell out of your means and do not harm them in order to oppress them. And if they should be pregnant, then spend on them until they give birth. And if they breastfeed for you, then give them their payment and confer among yourselves in an acceptable way; but if you are in discord, then there may breastfeed for the father another woman”
The Holy Quran, Chapter 65 Verse 6
Child Custody Matters after Divorce
The litigation of Child Custody, Child Visitation Rights, and Guardianship are separate from divorce proceedings. It is another myth in our society that divorce does not affect the outcome of Child Custody. In Child Custody cases, Judges only keep one factor in mind, which is the paramount welfare of the minors. This factor is irrespective of what the parents of the minor wish, and is based solely on the evidence presented in court. These cases have their own merits and circumstances.
Speak to us about your Divorce in Pakistan Today!
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