ZAFAR & ASSOCIATES - LLP | Divorce Law, Khula & Talaq - Pakistan
Divorce law encompasses a divorce or dissolution of marriage is the ending of a marriage before the death of either spouse, it can be contrasted with an annulment, which is a declaration that a marriage is void, though the effects of marriage may be recognized in such unions, such as spousal support or alimony, child custody, child support, and distribution of property.
In some jurisdictions, a divorce must be certified by a court of law, as a legal action is needed to dissolve the prior legal act of marriage. The terms of the divorce are also determined by the court, though they may take into account prenuptial agreements or postnuptial agreements, or simply ratify terms that the spouses have agreed on privately. Often, however, the spouses disagree about the terms of the divorce, which can lead to stressful and expensive litigation. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce, which negotiate mutually acceptable resolution to conflicts. In some other countries, when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non judiciary administrative entity.
Divorce Law Practice in Pakistan
After a military take-over in 1999, the Constitution was again suspended. During 2000, discussions continued about possible amendments to the Constitution.
Divorce (Talaq / Khula) under Muslim Family Laws
The contract of marriage under the Mohammedan Law may be dissolved in any one of the following ways:
By the husband at his will, without the intervention of a Court;
By mutual consent of the husband and wife, without the intervention of a Court; and
By a judicial decree at the suit of the husband or wife.
The wife cannot divorce herself from her husband without his consent, except under a contract whether made before or after marriage, but she may, in some cases, obtain a divorce by judicial decrees.
Necessary Ingredients of Divorce / Talaq
Should be Intentional
In one case cited as 2004 YLR 619, Federal Shariat Court and 1993 CLC 219 (LHC) categorically observed that a conscious and wilful pronouncement of talaq with the intention to release the wife from marriage bond is a necessary and fore-most requirement of talaq. Thus, in the absence of element of intention to release wife from marital bond, no divorce can be said to be affected.
Should be Communicated
Talaq should be communicated to wife, either verbally or in writing.
Kinds of Divorce / Talaq
Talaq-al-Ahsan
This consists of a single pronouncement of divorce made during a tuhr (period between menstruations) followed by abstinence from going to wife to establish marital relationship till the period of iddat. The said form of Talaq is revocable during the iddate period, however after expiration of the same, the talaq becomes irrevocable and effective. The mode of talaq so recognized under Sec. 7 of the Muslim Family Law Ordinance 1961, is that of Talaq-e-Ahsan.
Talaq-e-Hasan (Proper)
This consists of three pronouncements made by husband during successive three tuhrs, without establishing any physical relationship with the wife, in any of the three tuhrs. The said form of talaq is revocable after first and second pronouncement but after third pronouncement, it becomes irrevocable.
Talaq-e-Biddat
This consist of three pronouncement made during a single tuhr or a single pronouncement made during a tuhr clearly indicating an irrevocable intention to dissolve the marital tie.
Delegated Divorce
It is a form of divorce, wherein husband grants the right to his wife to pronounce divorce upon herself. The divorce pronounced by exercising said right operates in the same manner as the divorce pronounced by the husband.
Talaq-e-Mubarat
In this form of divorce, both husband and wife mutually agreed to divorce and to free themselves from the marital tie and obligations.
Divorce Process
Procedure of Divorce / Talaq to be followed by a Pakistani Muslim Citizen living in Pakistan
According to Muslim Family Laws Ordinance, 1961, to give effect to talaq / divorce there are three requirements:
Pronouncement in accordance with Muslim Law;
Service of Notice upon Chairman; and
Service of the Copy of Notice upon Wife.
The procedure of divorce as contemplated in Section 7 of Muslim Family Laws Ordinance, 1961 is as under:
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 the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.
Whoever contrivance the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand Rupees or with both.
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 under sub-section (1) is delivered to the Chairman.
Within thirty days of the receipt of notice under sub-section (1) the Chairman shall constitute an Arbitration Council for the purpose of bringing about reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
If the wife be pregnant at the time of talaq / divorce is pronounced, talaq / divorce shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever be later, ends.
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 third time so effective.
Notice under Section 7(1) is to be given to the Chairman of the Union Council of the Union or Town, where the wife in relation to whom divorce has been pronounced was residing at the time to its pronouncement. However, if at the time of pronouncement of divorce, the wife is not residing in any part of Pakistan, the Union Council that shall have the jurisdiction in such cases shall either be the Union Council of the Council or Town where she last resided with such person whereas, in any other case, the Union Council of the Council or Town, where the person pronouncing the divorce is permanently residing in Pakistan.
Procedure of Divorce / Talaq to be followed by a Pakistani Muslim Citizen living in Foreign Countries
Under Notification No. S.R.O. 1086(K)/61, dated 8-11-1961 and different precedent of superior courts, where both the parties to marriage are permanent residents of foreign Country then the Union Council in Pakistan would not have the jurisdiction to entertain and proceed with the divorce proceedings in Pakistan. The function of Chairman Arbitration Council under Muslim Family Laws Ordinance, 1961, were to be performed by an appointed officer of Pakistan Mission abroad.
However, if any of the spouse is living in Pakistan at the time of pronouncement of divorce then the divorce proceedings can be validly initiated in Pakistan.
Validity and Authenticity of Talaq-e-Biddat : Controversial Issue
The question pertaining to divorce which generally arises in the society is that whether the writing of three divorces would operate as single divorce or it would be irrevocable triple divorce?
The concept of Talaq-e-Biddat and its practice in the light of Holy Quran, Sunnah and legislation of different Islamic Countries has been reproduced by us hereunder:
Talaq-e-Biddat in the Light of Holy Quran
The word talaq derives from Arabic and means ‘freeing or undoing the knot.’ In Islamic terminology, it refers to a divorce.
The Quranic message is very explicit about divorce. It leans more toward safeguarding marriage than dissolving it abruptly.
The chapter on women in the Quran draws attention to the need for arbitration before husband and wife to decide to part ways. It commands:
In the event that triple talaq is pronounced in one go operates as triple divorce, then where does the chances of Arbitration stands, as stated in the Holy Quran.
The Quran prescribes certain norms and procedure to execute divorce, which are required to be followed:
It continues to say:
Elsewhere, it further decrees:
The Islamic scripture demands time and patience in executing a divorce in the hope of making the union possible knowing that the couple is bound to have differences.
There is a complete chapter devoted to divorce in the Quran entitled ‘At-Talaq’, which explains:
The divine book of Islam is filled with examples of exercising restraint in divorce. There is not a single verse that validates the notion of triple talaq in one sitting.
Dismissal of One-Time Triple Talaq by the Holy Prophet (P.B.U.H)
According to a report, Abdullah bin Abbas, a companion of the Prophet said that triple talaq in one sitting was considered as only one talaq during the Prophet’s time, the period of the first caliph Abu Bakr and during the early years of the second caliph Umar (Sahih Muslim, 1482).
Once Rukanah bin Yazid, a companion of the Prophet, had divorced his wife thrice in one sitting. Regretting what he had done, he approached the Prophet, who asked him how he had divorced his wife. Yazid answered that he had done so by pronouncing the word talaq thrice. The Prophet asked him if he had pronounced it in a single sitting, to which he replied in the affirmative. The Prophet then said that it had the effect of one divorce and that he could take his wife back.
Difference of Opinions Among Different Schools of Thought
The scholars differed concerning the ruling on one who divorces his wife by saying “I divorce you thrice”. It is submitted, that ‘talaq-e-biddat’ is recognized only by a few Sunni schools. Most prominently, by the Hanafi sect of Sunni Muslims. It was however emphasized, that even those schools that recognized ‘talaq-e-biddat’ described it, “as a sinful form of divorce”.7; others are of the view that divorce takes place only once.
Shaykh ‘Abd al-‘Azeez ibn Baaz (may Allaah have mercy on him) was asked: A man divorced his wife by saying “I divorce you thrice”; what is the ruling on that?
He replied: If a man divorces his wife three times with one word, such as saying, “You are thrice divorced”, some of scholars are of the view that the woman is indeed thrice divorced and becomes forbidden for her husband until she has been married to another man in a serious marriage in which the new husband has intercourse with her and they only separate as a result of death or divorce, not a tahleel marriage (i.e., a marriage of convenience aimed at making it permissible for her to remarry her former husband).
They quoted as evidence for that the fact that ‘Umar ibn al-Khattaab (may Allaah be pleased with him) counted such a divorce as being three and judged among people accordingly.
Other scholars were of the view that this is to be regarded as a single divorce, and the husband may take her back so long as the ‘iddah has not yet ended. If the ‘iddah has ended then she may marry him with a new marriage contract. They quoted as evidence for that the report narrated in Saheeh Muslim from Ibn ‘Abbaas (may Allaah be pleased with him) who said: “At the time of the Messenger of Allaah (peace and blessings of Allaah be upon him), the time of Abu Bakr (may Allaah be pleased with him) and the first two years of the caliphate of ‘Umar (may Allaah be pleased with him), a threefold divorce was counted as one. ‘Umar said: “People are being hasty with regard to a matter in which they should not rush. Let us count it as three and judge between people accordingly.” According to another report narrated by Muslim: Abu’l-Sahba’ said to Ibn ‘Abbaas (may Allaah be pleased with them): “Was not three counted as one at the time of the Messenger of Allaah (peace and blessings of Allaah be upon him) and the time of Abu Bakr (may Allaah be pleased with him) and the first three years of the time of ‘Umar (may Allaah be pleased with him)?” He said: “Yes,”
They also quoted as evidence the report narrated by Imam Ahmad in al-Musnad with a jayyid isnaad from Ibn ‘Abbaas (may Allaah be pleased with him), that Abu Rakaanah divorced his wife by saying “I divorce you thrice”, then he regretted it, so the Prophet (peace and blessings of Allaah be upon him) returned her to him with one word and said, “This is only one (divorce).”
This was the view of Ibn ‘Abbaas (may Allaah be pleased with him) according to a saheeh report narrated from him; according to the other report narrated from him he shared the view of the majority. The view that they should be regarded as one divorce was narrated from ‘Ali, ‘Abd al-Rahmaan ibn ‘Awf and al-Zubayr ibn al-‘Awwaam (may Allaah be pleased with them).
This was also the view of a number of the Taabi’een, Muhammad ibn Ishaaq the author of al-Seerah, and a number of the earlier and later scholars. It was also the view favoured by Shaykh al-Islam Ibn Taymiyah and his student Ibn al-Qayyim (may Allaah have mercy on them). This is also my view, because that is following all of the texts, and because it is also more merciful and kind to the Muslims. Fataawa Islamiyyah, 3/281, 282.
But after the ‘iddah is over you cannot take her back, rather you have to make a new marriage contract with her.
With regard to taking the wife back after the ‘iddah is over – i.e., after three menstrual cycles – this is not valid, because once a woman’s ‘iddah is completed she becomes a “stranger” for her husband and she is not permissible for him except with a new marriage contract. Fataawa Islamiyyah, 3/293
Legislation Over Divorce in Pakistan
It is worthwhile to mention here that by enacting Sec. 7 of the Muslim Family Law Ordinance, 1961, the legislature of Pakistan has condemned and abolished the practice of disapproved form of talaq and mode prescribed in the Ordinance was that of a Talaq-e-Ahsan. Sub-section (6) of Sec. 7 of the Muslim Family Law Ordinance, 1961 allows the couple to remarry without an intervening marriage unless they had been divorced thrice. Reliance in this respect is also placed upon PLD 2003 Pesh. 169 (DB).
Section 7 of the Muslim Family Law Ordinance, 1961 reads as under:
7. Talaq (1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, gives the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever, contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.
(3) Save as provided in sub-section (5), a talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever be later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.
Precedent Over Talaq-e-Biddat in Pakistan
Further, Mr. Justice Syed Jamshed Ali in one case cited as 2003 YLR 2623, has categorically held that the pronouncement of three divorces in one sitting operates as a single divorce. The Hon’ble judge while passing the aforesaid judgment has discussed the English translation of the relevant verses from Surah-al-Baqarah, Surah-al-Nisa and Surah-Al Talaq from the Holy Quran published by King Fahd Holy Quran Printing Complex, Al-Madinah - Al Munawarah and relied upon the report of Ibn’Abbas, narrated in Page 86, Chapter 4 of the Muslim Law of Divorce by K.N. Ahmad (1984), wherein it has been specified that the pronouncement of three divorces at one and the same time was treated as one divorce during the time of the Prophet (peace be upon him), the first Caliph and during the first two or three years of regime of the Second Caliph. But the Second Caliph found that people used to pronounce divorces want only many time and in order to discourage this undesirable practice he introduced the rule that pronouncement of three divorces at one and the same time shall be treated as three divorces or a final or Mughallazah divorce.
Abrogation of Talaq-e-Biddat under Laws of Distinct Islamic Countries
That, in addition to the above, it is pertinent to mention here that there are a number of Muslim Countries wherein, the practice of talaq-e-Biddah has been abolished under the law and pronouncement of three divorces in one sitting is said to operate as one revocable divorce. The countries which have abolished ‘talaq-e-biddat’ have been divided into Arab States, Southeast Asian States, and Subcontinental States and the relevant clauses of their laws are reproduced hereunder for your kind perusal.
Laws of Arab States
Algeria
Algeria is a theocratic State, which declares Islam to be its official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:
Code of Family Law 1984 | Law No.84-11 of 1984 as amended in 2005
Article 49. Divorce cannot be established except by a judgment of the Court, preceded by an attempt at reconciliation for a period not exceeding three months.
Egypt
Egypt is a secular State. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:
Law of Personal Status 1929
Law 25 of 1929 as amended by Law 100 of 1985
Article 1. A Talaq pronounced under the effect of intoxication or compulsion shall not be effective.
Article 2. A conditional Talaq which is not meant to take effect immediately shall have no effect if it is used as an inducement to do some act or to abstain from it.
Article 3. A Talaq accompanied by a number, expressly or impliedly, shall not be effective except as a single revocable divorce.
Article 4. Symbolic expressions of talaq, i.e., words which may or may not bear the implication of a divorce, shall not effect a divorce unless the husband actually intended it.
Iraq
Iraq is a theocratic State, which declares Islam to be its official religion. The majority of Iraq’s Muslims is Shias. On the issue in hand, it has enacted the following legislation:
Code of Personal Status 1959
Law 188 of 1959 as amended by Law 90 of 1987
Article 35. No divorce shall be effective when pronounced by the persons mentioned below:
a one who is intoxicated, insane or imbecile, under duress, or not in his senses due to anger, sudden calamity, old age or sickness;
b a person in death-sickness or in a condition which in all probabilities is fatal and of which he actually dies, survived by his wife.
Article 37.
(1) Where a Talaq is coupled with a number, express or implied, not more than one divorce shall take place.
(2) If a woman is divorced thrice on three separate occasions by her husband, no revocation or remarriage would be permissible after that.
Article 39.
(1) When a person intends to divorce his wife, he shall institute a suit in the Court of Personal Status requesting that it be effected and that an order be issued therefor. If a person cannot so approach the court, registration of the divorce in the court during the period of Iddat shall be binding on him.
(2) The certificate of marriage shall remain valid till it is cancelled by the court.
Jordan
Jordan is a secular State. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:
Code of Personal Status 1976
Law 61 of 1976
Article 88.
(1) Talaq shall not be effective if pronounced under intoxication, bewilderment, compulsion, mental disorder, depression or effect of sleep.
(2) ‘Bewildered’ is one who has lost senses due to anger or provocation, etc., and cannot understand what he is saying.
Article 90. A divorce coupled with a number, expressly or impliedly, as also a divorce repeated in the same sitting, will not take effect except as a single divorce.
Article 94. Every divorce shall be revocable except the final third, one before consummation and one with consideration.
Article 98. Where an irrevocable Talaq was pronounced once or twice, renewal of marriage with the consent of parties is not prohibited.
Kuwait
Kuwait is a theocratic State, which declares Islam to be the official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has the following legislation in place:
Code of Personal Status 1984
Law 51 of 1984
Article 102. Talaq may be effected by major and sane men acting by their free will and understanding the implications of their action. Therefore Talaq shall not take effect if the husband is mentally handicapped, imbecile, under coercion, mistake, intoxication, fear or high anger affecting his speech and action.
Article 109. If a Talaq is pronounced with a number (two, three) by words, signs or writing, only one Talaq shall take effect.
Lebanon
Is a secular State. Muslims constitute its majority, which is estimated to be 54% (27% Shia, and 27% Sunni). On the issue in hand, it has enacted the following legislation:
Family Rights Law 1962
Law of 16 July 1962
Article 104. A divorce by a drunk person shall have no effect.
Article 105. A divorce pronounced under coercion shall have no effect.
Libya
Libya is a theocratic State, which declares Islam to be its official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:
Family Law 1984
Law 10 of 1984 as amended by Law 15 of 1984
Article 28. Divorce is termination of the marriage bond. No divorce will become effective in any case except by a decree of a competent court and subject to the provision of Article 30.
Article 29. Divorce is of two kinds – revocable and irrevocable. Revocable divorce does not terminate the marriage till the expiry of Iddat. Irrevocable divorce terminates the marriage forthwith.
Article 30. All divorces shall be revocable except a third-time divorce, one before consummation of marriage, one for a consideration, and those specified in this law to be irrevocable.
Article 31. A divorce shall be effective only if pronounced in clear words showing intention to dissolve the marriage. Symbolic or metaphorical expression will not dissolve the marriage.
Article 32. A divorce pronounced by a minor or insane person, or if pronounced under coercion, or with no clear intention to dissolve the marriage, shall have no legal effect.
Article 33. A divorce pronounced by a minor or insane person, or if pronounced under coercion, or with no clear intention to dissolve the marriage, shall have no legal effect.
Article 35.
(1) A divorce meant to be effect on some action or omission of the wife shall have no legal effect.
(2) A divorce given with a view to binding the wife to an oath or restrain her from doing something shall have no legal effect.
(3) A divorce to which a number is attached, by express words or a gesture, shall effect only a single revocable divorce, except when it is pronounced for the third time.
Article 47. A divorce must be pronounced in a court and in the presence of the other party or his or her representative. The court shall before giving effect to a divorce exhaust all possibilities of reconciliation.
Morocco
Morocco is a theocratic State, which declares Islam to be its official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:
Code of Personal Status 2004
Law 70.03 of 2004
Article 79. Whoever divorces his wife by Talaq must petition the court for permission to register it with the Public Notaries of the area where the matrimonial home is situated, or where the wife resides, or where the marriage took place.
Article 80. The petition will mention the identity of spouses, their professions, addresses, number of children, if any, with their age, health condition and educational status. It must be supported by a copy of the marriage agreement and a document stating the husband’s social status and financial obligations.
Article 81. The court shall summon the spouses and attempt reconciliation. If the husband deliberately abstains, this will be deemed to be withdrawal of the petition. If the wife abstains, the court will notify her that if she does not present herself the petition may be decided in her absence. If the husband has fraudulently given a wrong address for the wife, he may be prosecuted at her instance.
Article 82. The court will hear the parties and their witnesses in camera and take all possible steps to reconcile them, including appointment of arbitrators or a family reconciliation council, and if there are children such efforts shall be exhausted within thirty days. If reconciliation takes place, a report will be filed with the court.
Article 83. If reconciliation attempts fail, the court shall fix an amount to be deposited by the husband in the court within thirty days towards payment of the wife’s post-divorce dues and maintenance of children.
Article 90. No divorce is permissible for a person who is not in his senses or is under coercion or provocation.
Article 92. Multiple expressions of divorce, oral or written, shall have the effect of a single divorce only.
Article 123. Every divorce pronounced by the husband shall be revocable, except a third-time divorce, divorce before consummation of marriage, divorce by mutual consent, and divorce by Khula or Talaq-e-Tafweez.
Sudan
Sudan is a theocratic State, which declares Islam to be its official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has the following legislation in place:
Law on Talaq 1935
Judicial Proclamation No.4 of 1935
Article 1. A divorce uttered in a state of intoxication or under duress shall be invalid and ineffective.
Article 2. A contingent divorce which is not meant to be effective immediately and is used as an inducement or threat shall have not effect.
Article 3. A formula of divorce coupled with a number, expressly or impliedly, shall effect only one divorce.
Article 4. Metaphorical expressions used for a divorce shall have the effect of dissolving the marriage only if the husband actually meant a divorce.
Syria
Is a secular State. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:
Code of Personal Status 1953
Law 59 of 1953 as amended by Law 34 of 1975
Article 89. No divorce shall take place when the man is drunk, out of his senses, or under duress. A person is out of his senses when due to anger, etc. he does not appreciate what he says.
Article 90. A conditional divorce shall have no effect if not actually intended and used only as an inducement to do or abstain from doing something or as an oath or persuasion.
Article 92. If a divorce is coupled with a number, expressly or impliedly, not more than one divorce shall take place.
Article 94. Every divorce shall be revocable except a third-time divorce, one before consummation, a divorce with a consideration, and a divorce stated in this Code to be irrevocable.
Article 117. Where a person divorces his wife the court may, if satisfied that he has arbitrarily done so without any reasonable cause and that as a result of the divorce the wife shall suffer damage and become destitute, give a decision, with due regard to the husband’s financial condition and the amount of wife’s suffering, that he should pay her compensation not exceeding three years’ maintenance, in addition to maintenance payable during the period of Iddat. It may be directed to be paid either in a lump sum or in instalments as the circumstances of a case may require.
Tunisia
Tunisia is a theocratic State, which declares Islam to be its official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:
Code of Personal Status 1956
Law 13-8 of 1956 as amended by Law 7 of 1981
Article 31.
(1) A decree of divorce shall be given: (i) with the mutual consent of the parties; or (ii) at the instance of either party on the ground of injury; or (iii) if the husband insists on divorce or the wife demands it. The party causing material or mental injury by the fact of divorce under clauses (ii) and (iii) shall be directed to indemnify the aggrieved spouse.
(2) As regards the woman to be indemnified for material injury in terms of money, the same shall be paid to her after the expiry of Iddat and may be in the form of retention of the matrimonial home. This indemnity will be subject to revision, increase or decrease in accordance with the changes in the circumstances of the divorced wife until she is alive or until she changes her marital status by marrying again. If the former husband dies, this indemnity will be a charge on his estate and will have to be met by his heirs if they consent to it and will be decided by the court if they disagree. They may pay her in a lump sum within one year from the former husband’s death the indemnity claimable by her.
Article 32.
(1) No divorce shall be decreed except after the court has made an overall inquiry into the causes of rift and failed to effect reconciliation.
(2) Where no reconciliation is possible the court shall provide, even if not asked to, for all important matters relating to the residence of the spouses, maintenance and custody of children and meeting the children, except when the parties specifically agree to forgo all or any of these rights. The court shall fix the maintenance on the basis of all those facts which it comes to know while attempting reconciliation. All important matters shall be provided for in the decree, which shall be non-appealable but can be reviewed for making additional provisions.
(3) The court of first instance shall pass orders in the matters of divorce and all concerning matters including the compensation money to which the divorced wife may be entitled after the expiry of Iddat. The portions of the decree relating to custody, maintenance, compensation, residence and right to visit children shall be executed immediately.
United Arab Emirates
UAE is a theocratic State, as the Federal Constitution declares Islam to be the official religion. The Constitution also provides for freedom of religion, in accordance with established customs. Muslims of the Shia sect constitute its majority. On the issue in hand, it has the following legislation in place:
Law of Personal Status 2005
Federal Law No.28 of 2005
Article 140.
(1) If a husband divorces his wife after consummation of a valid marriage by his unilateral action and without any move for divorce from her side, she will be entitled to compensation besides maintenance for Iddat. The amount of compensation will be decided with due regard to the means of the husband and the hardship suffered by the wife, but it shall not exceed the amount of one year’s maintenance payable in law to a woman of her status.
(2) The Kazi may decree the compensation, to be paid as a lump sum or in instalments, according to the husband’s ability to pay.
Yemen
Is a theocratic State, which declares Islam to be the official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has the following legislation in place:
Decree on Personal Status 1992
Decree 20 of 1992
Article 61. A divorce shall not be effective if pronounced by a man who is drunk, or has lost his senses, or has no power of discernment, if this is shown by his condition and action.
Article 64. A divorce to which a number is attached, whatever be the number, will effect only a single revocable divorce.
Article 65. The words saying that if the wife did or failed to do something she will stand divorced will not effect a divorce.
Article 66. The words that if an oath or vow is broken it will effect a divorce will not dissolve the marriage even if the said oath or vow is broken.
Article 67. A divorce can be revoked by the husband during the Iddat period. After the expiry of Iddat, a direct remarriage between them will be lawful.
Article 71. If a man arbitrarily divorces his wife without any reasonable ground and it causes hardship to her, the court may grant her compensation payable by the husband not exceeding maintenance for one year in accordance with her status. The court may decide if the compensation will be paid as a lump sum or in instalments.
Laws of South-East Asian States
Indonesia
The Constitution of Indonesia guarantees freedom of religion among Indonesians. However, the Government recognizes only six official religions – Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has the following legislation in place:
Law of Marriage 1974
Law 1 of 1974
Article 38. A divorce shall be effected only in the court and the court shall not permit a divorce before attempting reconciliation between the parties. Divorce shall be permissible only for sufficient reasons indicating breakdown of marriage.
Article 41. In the event of a divorce both the parents shall continue to be responsible for the maintenance of their children. As regards custody of children, in case of a dispute between them the court shall take a decision. Expenses of maintenance and education shall be primarily the father’s liability, but if he is unable to discharge this liability the court may transfer it to the mother. The court may also direct the former husband to pay alimony to the divorced wife.
Marriage Regulations 1975
Regulation 9 of 1975
Article 14. A man married under Islamic law wanting to divorce his wife shall by a letter notify his intention to the District Court seeking proceedings for that purpose.
Article 15. On receiving a letter the court shall, within thirty days, summon the parties and gather from them all relevant facts.
Article 16. If the court is satisfied of the existence of any of the grounds mentioned in Article 19 below and is convinced that no reconciliation between the parties is possible it will allow a divorce.
Article 17. Immediately after allowing a divorce as laid down in Article above the court shall issue a certificate of divorce and send it to the Registrar for registration of the divorce.
Article 19. A divorce may be allowed on the petition of either party if the other party:
a) has committed adultery or become addict to alcohol, drugs, gambling or another serious vice;
b) has deserted the aggrieved party for two years or more without any legal ground and against the said party’s will;
c) has been imprisoned for at least five years;
d) has treated the aggrieved party with cruelty of an injurious nature;
e) has been suffering from a physical deformity affecting conjugal duties, or where relations between the spouses have become too much strained making reconciliation impossible.
Malaysia
Under the Constitution of Malaysia, Islam is the official religion of the country, but other religions are permitted to be practiced in peace and harmony. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has the following legislation in place:
Islamic Family Law Act 1984
Act 304 of 1984
Article 47.
(1) A husband or a wife who desires a divorce shall present an application for divorce to the court in the prescribed form accompanied by a statutory declaration containing (a) particulars of the marriage and the name, ages and sex of the children, if any, of the marriage; (b) particulars of the facts giving the court jurisdiction under Section 45; (c) particulars of any previous matrimonial proceedings between the parties, including the place of the proceedings; (d) a statement as to the reasons for desiring divorce; (e) a statement as to whether any, and if so, what steps have been taken to effect reconciliation; (f) the terms of any agreement regarding maintenance and habitation of the wife and the children of the marriage, if any, and the division of any assets acquired through the joint effort of the parties, if any, or where no such agreement has been reached, the applicant’s proposals regarding those matters; and (g) particulars of the order sought.
(2) Upon receiving an application for divorce, the court shall cause summons to be served on the other party together with a copy of the application and the statutory declaration made by the applicant, and the summons shall direct the other party to appear before the court so as to enable it to inquire whether or not the other party consents to the divorce.
(3) If the other party consents to the divorce and the court is satisfied after due inquiry and investigation that the marriage has irretrievably broken down, the court shall advise the husband to pronounce one Talaq before the court.
(4) The court shall record the fact of the pronouncement of one Talaq and shall send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration.
(5) Where the other party does not consent to the divorce or it appears to the court that there is reasonable possibility of a reconciliation between the parties, the court shall as soon as possible appoint a Conciliatory Committee consisting of a religious officer as Chairman and two other persons, one to act for the husband and the other for the wife, and refer the case to the Committee.
(6) In appointing the two persons under sub-section (5) the court shall, where possible, give preference to close relatives of the parties having knowledge of the circumstances of the case.
(7) The court may give directions to the Conciliatory Committee as to the conduct of the conciliation and it shall conduct it in accordance with such directions.
(8) If the Committee is unable to agree or if the court is not satisfied with its conduct of the conciliation, the court may remove the Committee and appoint another Committee in its place.
(9) The Committee shall endeavour to effect reconciliation within a period of six months from the date of its being constituted or such further period as may be allowed by the court.
(10) The Committee shall require the attendance of the parties and shall give each of them an opportunity of being heard and may hear such other persons and make such inquiries as it thinks fit and may, if it considers it necessary, adjourn its proceedings from time to time.
(11) If the Conciliatory Committee is unable to effect reconciliation and is unable to persuade the parties to resume their conjugal relationship, it shall issue a certificate to that effect and may append to the certificate such recommendations as it thinks fit regarding maintenance and custody of the minor children of the marriage, if any, regarding division of property and other matters related to the marriage.
(12) No advocate and solicitor shall appear or act for any party in any proceeding before a Conciliatory Committee and no party shall be represented by any person other than a member of his or her family without the leave of the Conciliatory Committee.
(13) Where the Committee reports to the court that reconciliation has been effected and the parties have resumed their conjugal relationship, the court shall dismiss the application for divorce.
(14) Where the Committee submits to the court a certificate that it is unable to effect reconciliation and to persuade the parties to resume the conjugal relationship, the court shall advise the husband to pronounce one Talaq before the court, and where the court is unable to procure the presence of the husband before the court to pronounce one Talaq, or where the husband refuses to pronounce one Talaq, the court shall refer the case to the Hakams [arbitrators] for action according to section 48.
(15) The requirement of sub-section (5) as to reference to a Conciliatory Committee shall not apply in any case (a) where the applicant alleges that he or she has been deserted by an does not know the whereabouts of the other party; (b) where the other party is residing outside West Malaysia and it is unlikely that he or she will be within the jurisdiction of the court within six months after the date of the application; (c) where the other party is imprisoned for a term of three years or more; (d) where the applicant alleges that the other party is suffering from incurable mental illness; or (e) where the court is satisfied that there are exceptional circumstances which make reference to a Conciliatory Committee impracticable.
(16) Save as provided in sub-section (17), a Talaq pronounced by the husband or an order made by the court shall not be effective until the expiry of the Iddat.
(17) If the wife is pregnant at the time the Talaq is pronounced or the order is made, the Talaq or the order shall not be effective until the pregnancy ends.
Philippines
Is a secular State. Christians constitute its majority. On the issue in hand, it has the following legislation in place:
Code of Muslim Personal Law 1977
Decree No.1083 of 1977
Article 46.
(1) A divorce by Talaq may be effected by the husband in a single repudiation of his wife during her Tuhr [non-menstrual period] within which he has totally abstained from carnal relations with her.
(2) Any number of repudiations made during one Tuhr [non-menstrual period] shall constitute only one repudiation and shall become irrevocable after the expiration of the prescribed Iddat.
(3) A husband who repudiates his wife, either for the first or second time shall have the right to take her back within the Iddat period by resumption of cohabitation without need of a new contract of marriage. Should he fail to do so, the repudiation shall become irrevocable.
Article 85. Within seven days after the revocation of a divorce the husband shall, with the wife’s consent, send a statement thereof to the Circuit Registrar in whose records the divorce was previously entered.
Article 161.
(1) A Muslim male who has pronounced a Talaq shall, without delay, file with the Clerk of the Sharia Circuit Court of the place where his family resides a written notice of such fact and the circumstances attending thereto, after having served a copy to the wife concerned. The Talaq pronounced shall not become irrevocable until after the expiration of the prescribed Iddat.
(2) Within seven days from receipt of notice the Clerk of the Court shall require each of the parties to nominate a representative. The representatives shall be appointed by the court to constitute, with the Clerk of the Court as Chairman, an Agama [religious scholars] Arbitration Council which shall try and submit to the court a report on the result of arbitration on the basis of which, and such other evidence as may be allowed, the court will pass an order.
(3) The provisions of this Article will be observed if the wife exercises right to Talaq-e-Tafweez.
Article 183. A person who fails to comply with the requirements of Article 85, 161 and 162 of this Code shall be penalized by imprisonment or a fine of two hundred to two thousand Pesos, or both.
Laws of Sub-Continental States
Bangladesh
Is theocratic States, wherein Islam is the official religion. Said Muslim country Muslims of the Sunni sect constitute the majority. On the issue in hand, it has the following legislation in place:
Muslim Family Laws Ordinance 1961
Ordinance VIII of 1961 amended in Bangladesh by Ordinance 114 of 1985
Article 7.
(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talaq in any form whatsoever, give the Chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever contravenes the provision of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand taka, or with both.
(3) Save as provided in sub-section (5), a Talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under sub-section (1) the Chairman shall constitute an Arbitration Council for the purpose of bringing about reconciliation between the parties, and the Arbitration council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time Talaq is pronounced, Talaq shall not be effective until the period mentioned in sub-section (3) or of pregnancy, whichever is later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by Talaq effective under this section from re-marrying the same husband without any intervening marriage with a third person, unless such termination is for the third time so effective.
Sri Lanka
Is a secular State. Buddhists constitute its majority. On the issue in hand, it has the following legislation in place:
Muslim Marriage and Divorce Act 1951
Act 6 of 1951 as amended by Act 40 of 2006
Section 17
(4) Save as otherwise hereinafter expressly provided, every marriage contracted between Muslims after the commencement of this Act shall be registered, as hereinafter provided, immediately upon the conclusion of the Nikah ceremony connected therewith.
(5) In the case of each such marriage, the duty of causing it to be registered is hereby imposed upon the following persons concerned in the marriage; (a) the bridegroom, (b) the guardian of the bride, and (c) the person who conducted the Nikah ceremony connected with the marriage.
Section 27 Where a husband desires to divorce his wife the procedure laid down in Schedule II shall be followed.
Keeping in view different Quranic verses and reports narrated in Saheeh Muslim from Ibn ‘Abbaas (may Allah be pleased with him) who said: “At the time of the Messenger of Allah (peace and blessings of Allah be upon him), the time of Abu Bakr (may Allah be pleased with him) and the first two years of the caliphate of ‘Umar (may Allah be pleased with him), a threefold divorce was counted as one” as well as the laws of Pakistan and different Islamic States, where under, triple divorce in one sitting is counted as one, we’re of the opinion that the three divorces in one sitting operates as one and said divorce can be repudiated by the parties within the waiting period.
It is not however, out of place to mention here that in cases where the marriage is non-consummated one, the irrevocable divorce become effective immediately and there is no obligation upon the divorcee to observe iddat period.
The Christian Law
Divorce Act, 1869 is relating to the divorce of persons professing the Christian religion, and to confer upon certain Court jurisdiction in matters matrimonial. There are three modes described for seeking Divorce:
Dissolution of Marriage
Nullity of Marriage
Judicial Separation
Dissolution of Marriage
In 2017, in one case titled as Ameen Masih Versus Federation of Pakistan and others the Hon’ble Lahore High Court has restored Sec. 7 of the Divorce Act, 1869. Restored section 7 is to be read harmoniously with Section 10 of the Act. This means that grounds of divorce on the basis of adultery are available and anyone who wishes to invoke them is free to do so, but for those who wish to seek divorce on the ground of irretrievable breakdown of marriage, they can rely on section 7 of the Act and avail of the additional grounds of divorce available under the Matrimonial Causes Act, 1973 (UK), which will be available to the Christians in Pakistan and will be enforceable in Pakistan.
Judicial Separation
According to Section 22 of the Divorce Act, 1869, No decree shall hereafter be made for a divorce a mensa er toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of as divorce mensa et toro under the existing law, and such other legal effect as hereinafter mentioned.
Application for judicial separation on any one of the grounds aforesaid may be made by either husband or wife by petition to the Court of Civil Judge; and the Court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.
In every case of a judicial separation under this Act, the wife shall, from the date whilst the separation continues, be considered as unmarried with respect to property of every description which she may acquire or which may come to or devolve upon her. A decree of judicial separation is a court order similar to divorce, under which the couple remains legally married but their normal marital obligations cease and they no longer have to go on living together.
In judicial separation cases, the court has the same range of powers as in divorce cases to issue orders on dividing the matrimonial property and providing for the custody, support and maintenance of children. A judicial separation also negates any provision for the spouse in a will, unless a new will is made which reinstates them as a beneficiary. However, unlike a divorced spouse, one who is judicially separated may still be eligible for benefits under a pension scheme on the death of their partner. The application procedure for a judicial separation starts with one of the parties presenting a "Judicial Separation Petition" to the Court. A divorce petition can be used for this purpose, as long as it is amended by deleting the references to the marriage having "broken down" and the intention to dissolve the marriage. The Courts also require the completion of a "Statement of Arrangements" form, including similar information to that needed for a divorce, and the original Marriage Certificate, or a certified copy of this. The court fees payable are at a similar level to those for a divorce petition.
The grounds for judicial separation are much the same as for divorce, except that there is no requirement to prove that the marriage has broken down irretrievably, and the couple does not have to have been married for any minimum length of time. As with divorce petitions, grounds for judicial separation are adultery, unreasonable behaviour, desertion for at least two years, separation with consent for two years or separation without consent for five years. There is also the additional ground for judicial separation of "being habitually drunk". Unlike in the case of divorce, only one decree is issued, once the court is satisfied that the requirements for judicial separation have been met. The main circumstances under which judicial separation takes place are when one or both of the parties are opposed to divorce, perhaps for religious reasons; when the couple have been married for less than a year, during which there is an absolute ban on divorce; or when it may be difficult to provide the evidence of irretrievable breakdown of the marriage which is necessary for divorce.
A couple who have obtained a judicial separation can still apply for a divorce later on, after they have been legally married for at least three years. If they do so, the information they originally submitted in the application for judicial separation can be used again by the courts in considering their application for divorce.
If a couple decides that they wish to become full marriage partners again, they can apply for their judicial separation to be rescinded by the courts.
The Parsi Laws
The Parsi Marriage and Divorce Act (III of 1936) Under the Parsi Marriage and Divorce Act, 1936 there are following modes of Divorce:
Suit for Nullity
According to the Section 30 of the Parsi Marriage and Divorce Act, (III of 1936), in any case which consummation of the marriage is from natural causes impossible, such marriage may, at the instance of either party thereto, be declared to be null and void.
Suit for Dissolution
According to the Section 31, if a husband or wife shall have been continually absent from his or her wife or husband for the space of seven years, and shall not have been heard of as being alive within that time by those persons who would have naturally heard of him or her, had he or she been alive, the marriage of such husband or wife may, at the instance of either party thereto, be dissolved.
Suit for Judicial Separation
According to Section 34 of the Parsi Marriage and Divorce Act, 1936 any married person may sue for judicial separation on any of the ground for which such person could have filed a suit for divorce, or on ground that the defendant has been guilty of such cruelty to him or her or their children, or has used such personal violence, has behaved in such a way as to render it in the judgment of the Court improper to compel him or her to live with the defendant.
Constitution of Special Courts under the Act
For the purpose of hearing suits under this Act, a special Court shall be constituted under Section 18 in such places in the territories of Provincial Governments as such Government respectively shall think fit.
Every Court so constituted shall be entitled the Parsi District Matrimonial Court of the place at which it is constituted. Every Appeal filed against the order of the court shall lie to the High Court.
Divorce According To Hindu Laws as Applicable in India
As per the ancient Hindu laws there was no place for Divorce and it was with the codification of Hindu law that the first grounds for the new age laws were laid down. Divorce between two persons married under the Hindu Marriage Act is also governed by the same act.
The Hindu Marriage Act, 1955 applies not just to Hindus in the ordinary sense, but any person who is a Buddhist, Jaina or Sikh by religion, domiciled in India and who is not a "Muslim, Christian, Parsi or Jew by religion." The Act expressively prohibits polygamy by stipulating that a Hindu marriage can be solemnized between two Hindus if neither party has a living spouse at the time of marriage and that if they are not of unsound mind or not suffering from severe bouts of epilepsy. It prohibits child marriages by stating that bridegroom should have "completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage." Certain types of marriages are explicitly prohibited in the Act, under the definition of prohibited marriages. A marriage may be solemnized through customary rites and ceremonies or by taking seven steps around the sacred fire or through a simple process of registration. Registration of marriage is however not compulsory. According to the Act, both parties to marriage have the right to claim their conjugal rights or seek judicial separation based on certain conditions. The Act also defines when marriages are voidable, such as when there was no consent of the guardian, impotency, pregnancy by another person before marriage etc.
According to Hindu Marriage Act, 1955 (India), divorce can be sought on certain grounds, namely, adultery, cruelty, desertion for two years, religious conversion, mental abnormality, venereal disease, leprosy, renunciation of the world, physical separation and absence of communication for more than seven years and so on. Following is an extract from the Act regarding these stipulations.
Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party:
has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or
has, after the solemnization of the marriage, treated the petitioner with cruelty; or
has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
has ceased to be a Hindu by conversion to another religion; or
has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after the passing of a decree of restitution of conjugal rights in a proceeding to which they were parties. A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground:
in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before the commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (Act 2 of 1974) or under corresponding Section 488 of the Code of Criminal Procedure, (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground:
Provided that in either case the other wife is alive at the time of the presentation of the petition;
According to the Act, both parties to a marriage may seek legal separation by mutual consent on the ground that "they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved." Newly married couple cannot file a petition for divorce within one year of marriage. Divorced couple can remarry if the divorced proceedings are complete and there is no right of appeal against the court decree. Bigamy is a punishable offence under the Indian Penal Code. An aggrieved party in a divorce petition may seek permanent alimony and maintenance from the other party while filing a petition for divorce and if convinced, the court may grant gross sum on monthly or periodical basis for a term not exceeding the life of the applicant.
ZA-LLP helps and facilitate the clients in completing all the cordial formalities for getting their divorce registered in Pakistan, even if they are residing abroad and are not able to appear before the Union Councils/ Courts and also furnish the Legal Opinions over the issue of validity of Divorce and its implications.
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