A guide on the law of Divorce in Pakistan

Divorce is a significant and emotional process for everyone, but especially for women in Pakistan, where societal norms and legal complexities often make it challenging. Pakistan is an Islamic Republic, and its rules and regulations for Muslims are based on the Quran and Sunnah. Islam grants both men and women the right to end a marriage, but the legal procedures and implications are different depending on how the divorce is initiated. Many women remain unaware of their rights regarding maintenance, child custody, and financial security after divorce. In this article, I will raise awareness about the legal implications of divorce in Pakistan, women’s rights, and legal protections.

Legal Framework of Divorce in Pakistan:

The divorce laws in Pakistan are based on both Islamic principles and national legislation. These laws include:

• Muslim Family Law Ordinance 1961
• Family Courts Act 1964
• Dissolution of Muslim Marriages Act 1939

These laws provide specific procedures for both men and women to end marriages. However, in reality, women often have to work harder to assert their rights.

Types and Procedures of Divorce:

Divorce can be granted in Pakistan in various ways, including the following:

1. Talaq (By Husband)

There is a proper procedure for granting divorce (Talaq). According to Islamic law, the husband has the right to grant divorce, which can take the form of Talaq Raj’ee, Talaq Bain, or Talaq Mughallazah. The husband can issue a divorce orally or in writing, but he must give written notice to the Union Council. The wife must observe a three-month waiting period (Iddat) to confirm she is not pregnant. During this waiting period, the husband can revoke the divorce unless it is the third and final declaration. If the husband pronounces divorce for the third time, it becomes final and irreversible.

2. Khula (By Wife)

Khula is a method by which a woman can seek separation from her husband of her own free will, but she must apply to the Family Court for this. The woman files a petition for Khula, after which the court issues notices to the husband. If reconciliation is not possible, the court grants a decree of divorce, and the woman receives a certificate of dissolution of marriage. In some cases, the woman may have to forgo her dower or other rights, but the court may also protect her financial rights. Conditions for Khula include:

Dissolution of Muslim Marriage Act 1939:

Judicial divorce can be granted even without the consent of the husband, provided that the wife is willing to forgive her financial rights.

Legal Basis For Divorce:

Under Pakistan law and Islamic principles, a woman can obtain judicial divorce (Khula) on the following legal basis;

• The wife feels she can no longer live with her husband.
• The husband has been absent for four years and does not give any information.
• The husband has failed to provide maintenance for two years.
• If the husband commits physical, mental or emotional violence.
• If the husband has remarried without the wife’s permission.
• If the husband is involved in immoral relations.
• If the husband is suffering from a dangerous disease or mental disorder.
• If the husband does not establish marital relations with the wife for three years.

Judicial Khula Procedure:

The Family Court will issue a Khula order and send a notification to the Union Council, which will process it like a divorce notice. When the iddah period is completed, the Khula becomes effective.

When filing a claim for Khula, the wife usually has to return the dower and other benefits as Zar-e-Khula. However, it is not necessary to return the gifts given by the husband’s family. The court decides on the facts of the case as to how much and what to return. If the wife does not pay Zar-e-Khula, the Khula is not null and void, but the husband has to file a separate case to recover the Zar-e-Khula.

       Elimination of a woman’s right to divorce in the marriage contract

                                                      A common practice:

A common practice in Pakistan is that the right to divorce granted to a woman is deleted before it is included in the marriage contract, and is presented for signature at the time of marriage. Although according to Pakistani law, a woman has the right to divorce, which gives her the option to divorce herself instead of taking Khula. But in practice, the marriage contract is drafted in such a way that this right becomes ineffective, which defeats the original purpose of the legislation.

Therefore, it is hoped that legal awareness will be spread through this article, so that this practice can be eliminated in the society and women can secure their legal rights. If this method is Sharia and legal in the eyes of Islamic scholars, then it should be discussed in the parliament and legislation should be made to delete such clauses from the marriage contract. According to Pakistani divorce laws, a woman has the right to a divorce, which should not be deleted or removed from the marriage contract without her consent. Furthermore, the bride should be given a full opportunity to read and understand all the clauses of the marriage contract before the marriage, so that she can make an informed decision.

Five Important Steps Before Divorce in Islam:

It was narrated from Abdullah bin Umar (may Allah be pleased with him) that the Messenger of Allah (peace and blessings of Allah be upon him) said:

“The most hated of lawful things to Allah is divorce.”

(Sunan Abi Dawud, Hadith 2178)

Islam and the Quran have emphasized that husband and wife should live in love and harmony. However, it is natural for differences to arise in married life, especially in the early years. Islam always encourages resolving problems with justice and kindness. But if matters cannot be resolved, Islam instructs to adopt the following procedure before divorce:

1. Mutual negotiation:

• Husband and wife should try to resolve their differences between themselves without any interference.
• According to family counselors, interference from parents, siblings or friends often makes problems worse.
• It is better for husband and wife to act with patience, understanding and tolerance, because the principle of give and take is at work in a successful marriage.

Hazrat Abu Hurairah (RA) narrated that the Messenger of Allah (ﷺ) said:

“Whoever incites a woman against her husband is not one of us.”                                  (Sunan Abi Dawud, Hadith 2175)

2. Appointment of mediator:

• If husband and wife cannot resolve matters between themselves, two impartial mediators should be appointed from both families (one from the husband’s family, the other from the wife’s family) to try to reconcile.

3. Final Solution (Divorce or Khula):

• If mediation also fails, the husband can divorce or the wife can seek Khula.

4. Iddat and Conciliation Period:

• The notice of divorce is submitted to the concerned government office (Union Council), where a conciliation period of 90 days (three months) is given.
• If this is the third divorce, then conciliation is not allowed.

5. Opportunity for Review:

• During the Iddat, both parties can reconsider their decision and appeal.
• But if the conciliation period expires and there is no appeal, then the divorce becomes effective and the marriage is dissolved.
• If the wife is pregnant, then the divorce is not effective until the Iddat period is completed after the birth of the child.

Islamic laws advise husband and wife to adopt a conciliatory attitude, exercise patience and forbearance, and save the marital relationship to the last extent. However, if separation is unavoidable, Islam has provided a clear and fair procedure to ensure that the rights of the parties are protected.

3. Mutual Divorce (Talaq-e-Mubarat)

In Pakistan, Mutual Divorce is called Talaq-e-Mubarat, where both husband and wife agree to dissolve their marriage without going to court. In this process, both parties sign a mutual divorce deed and send a written notice to the Union Council. The government then issues a notice, and a 90-day reconciliation period begins. A council is appointed to mediate. If reconciliation is not possible, the marriage is dissolved. The mutual divorce deed can include specific conditions agreed upon by the couple, such as child custody, maintenance, and the return of dowry.

Financial Matters and Women’s Rights after Divorce:

The basic rights of women after divorce include:

1. Dower and Financial Rights

• If the husband has not paid the dower (Haq Mehr), the woman can take legal action.
• If the husband has divorced his wife without valid reason, she may be entitled to maintenance.

2. Child Custody and Maintenance

• The custody of children is decided under the Family Courts Act 1964.
• Generally, children under the age of seven live with the mother, while the custody of older children is determined based on their welfare.
• The father is legally responsible for the financial maintenance of the children.

3. Financial Rights During and After Divorce

• Women face several financial challenges after divorce, such as dowry payments, expenses during the Iddat period, and child support. Under Pakistani law: Dower is a woman’s Shariah and legal right. If the husband refuses to pay, she can file a claim in court.
• Iddat Expenses: The husband is obligated to pay for the wife’s expenses during the Iddat period. Under the Muslim Family Law Ordinance 1961, a woman can legally claim these expenses.

Conclusion:

In conclusion, divorce is a highly emotional and sensitive matter, particularly for women, as Pakistani society often does not fully accept divorced women. Although women in Pakistan have legal rights regarding divorce and related matters, they continue to face social pressure. According to Islamic teachings and national laws, women have the right to seek divorce under specific conditions and to live their lives peacefully. It is crucial for women to be aware of their rights and seek legal assistance to navigate these challenges effectively.

References:

Legal References

1. Muslim Family Laws Ordinance, 1961. Available at: Pakistan Laws Website
2. Dissolution of Muslim Marriages Act, 1939. Available at: Pakistan Laws Website
3. Family Courts Act, 1964. Available at: Pakistan Laws Website

Islamic References

1. The Holy Quran, Surah Al-Baqarah (2:229).
2. The Holy Quran, Surah An-Nisa (4:35).
3. Sunan Abi Dawud, Hadith 2178.
4. Sunan Abi Dawud, Hadith 2175.