Divorce Laws

Divorce law is often dependent on the religion of the parties. In Pakistan, Muslim marriage and divorce is governed by the Muslim Family Laws Ordinance, 1961. This law incorporates Islamic provisions within its fold.

Muslim Family Laws Ordinance 1961 (MFLO ‘61)

Pakistani law does not accord the “Chairman” of the Arbitration Council the right to issue an order or decree regarding the divorce or to declare it effective or ineffective, as case may be. Also, a husband may directly challenge a divorce order if handed down by a court of law or show cause notice served on him.

*The term “Chairman” is described by Muslim Family Laws Ordinance 1961, section 2(b) as: “‘Chairman’ means the Chairman of the Union Council or a person appointed by the Central or a Provincial Government, or by an officer authorized in that behalf by any such Government, to discharge the functions of Chairman under this Ordinance”

Section 7 of the MFLO ‘61

Furthermore the section 7 of the MFLO ‘61 delineates a very specific procedure through which divorce is to be obtained, and should the procedure not be followed, the pursuant of such a course of action may be held liable to legal punishment.
The procedure is as follows:

  • “(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 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) 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 conciliation 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 effect until the period mentioned in Sub-section (3) or the pregnancy, whichever later, ends.
  • (6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under his section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.”

**The term “Arbitration Council” is described by the said ordinance in its section 2(a) as: “‘Arbitration Council’ means a body consisting of the Chairman and representative of each of the parties to a matter deal with in this Ordinance”

The Islamic Way

The Islamic laws governing divorce in Pakistan cover three main domains – Shia, Sunni and Khula. There are three main types of divorces possible through the Islamic law:
1. Wife initiates divorce
3. Mutual agreement of Husband & Wife to terminate a marital contract
4. A court judgement dissolving marriage upon the request of a husband & wife.

It should be noted that a wife herself cannot declare herself declared and requires the husband’s consent. The divorce initiated by the husband is known as ‘Talaq’ and has four main forms, it can be issued in orally and/or in writing:
1. Talaq-e-Ahsan
2. Talaq-e Hasan
3. Talaq-e-Biddayi
4. Talaq-e-Rijayi

It also should be noted that Talaq needs to be finalized on paper, by registering the divorce through the union council. Once you file the divorce at the union council, there is a waiting period of 90 days during which a reconciliation can take place. Once this period is over the divorce is finalized. This is important as this affects the wife more than the husband.

For more information on this topic please refer to the ‘Chayn’ website, who have covered this topic in-depth.

 

Khula: A woman’s right to dissolution of marriage

Khula is the when the wife decides to dissolve the marriage contract and applies to court for annulment. Khula is dealt with in section 8 of the MFLO’61. The right to Khula is absolute and cannot be taken away from a woman, not even through a clause in nikahnama, and if there does exists such a clause in the nikahnama, it would be considered void. According to the Pakistani family law, the court cannot deny a woman the indisputable right of Khula. And even though the Council of Islamic Ideology in Pakistan recently stated that it is un-Islamic for the the courts to proceed with Khula without the husband’s right, the Pakistani courts still allow it, and thus Pakistani women have this as a valid option. One important thing to note is that when a woman applies for Khula, she also simultaneously has to apply for the return of the dowry, as applying later wouldn’t be valid i.e. the application for Khula and the return of the dowry has to be made together. You can read in-depth about Khula here.

 

Custody Laws

Hizanat: the right of a mother getting the custody of a minor.

Hizanat can be understood as the right to custody. In Islam there is a difference between guardianship and custody, so a father can be the guardian of a child whilst the mother has the right to custody.This right may change after the age of seven years, but this right is not absolute – as its made in the interest of the boy. The custody of girls is given to the mothers till they reach puberty. The chances of a mother receiving the custody of her children may be affected negatively if the mother’s conduct is found ‘objectionable’ The mother also loses the automatic right to custody if she remarries. A father gets the rights of custody after the terms of a mother’s rights end by the courts of law. In the absence of both parents the custody of the child/children is given to the grandparents. If you want a more in-depth understanding of this topic, you can read about it here.

 

Protection Against Child Marriage

Girls not Brides estimate that 21% of Pakistani women are married before they turn 18 years of age. This practice is child marriage but isn’t known as such and a lot of the girls involved are not in control of how or who they get married to. This is why we have highlighted laws relating to the prohibition of child marriage in Pakistan, so that you know you rights and can act accordingly.

Punjab: the 2015 amendment on Child Marriage

Child marriage occurs when one either party in a marriageable union is legally considered to be a minor, whereas a child is defined as a boy being under the age of 18 and a girl being under the age of sixteen.

The government of Punjab as recently amended the Child Marriage Restraint (Punjab Amendment) Ordinance, 1971 through the Punjab Marriage Restraint (Amendment) Act 2015. It updates the definition of the Union Council, increases the terms of imprisonment and fines, and increases the powers of the Family Court.

The new act further amends the sections 4, 5, 6 and 9 of the previous act:

Section 4. Punishment for male adult above eighteen years of age marrying a child.
Whoever, being a male above eighteen years of age, contracts child marriage shall be punishable with simple imprisonment which may extend to six months, or with fine which may extend to fifty thousand rupees, or with both.

Section 5. Punishment for solemnizing a child marriage.
Whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to six month, or with fine which may extend to fifty thousand rupees, or with both, unless he proves that he had reason to believe that the marriage was not a child marriage.

Section 6. Punishment for parent or guardian concerned in a child marriage.

(1) Where a minor contracts a child marriage any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnized, shall be punishable with simple imprisonment which may extend to six months, or with fine which may extend to fifty thousand rupees, or with both: provided that no woman shall be punishable with imprisonment

The punishments specified in Section 4 have been changed to “six months” and “fifty thousand rupees”.

 

The Sindh Child Marriages Restraint Act 2013

This Act defines a child as anyone under the age of 18 years of age, therefore a child marriage occurs when individual(s) under the age of 18 are part of a marriage contract. Any male found guilty faces fines and imprisonment no less than two years which may extend to three years. A perpetrator who helps organise such a marriage will also face similar punishment through fines and jail time, unless proven that the individual wasn’t aware of a party being a minor/child. Parents are also held liable through this act and face similar punishment as above.
If you would like to read on this please click here.
If yourself or someone you know is being forced to partake in a child marriage, please get in touch with the following:
Police through the hotline 115
Sahil, is an NGO that works to eradicate child abuse in Pakistan. Sahil’s free hotline is 0800 -13518