If a husband and wife cannot live happily within the limits set by Allah SWT, they can dissolve their marriage by divorce or khula. The husband can declare divorce, the wife can file a suit for dissolution of marriage and, where the right is granted, talaq can be declared. Every divorce or khula case has its own facts, circumstances, shortcomings, challenges, and solutions.
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Q: What terminology is used in Pakistan to identify parties in divorce cases?
Ans: The party filing the suit is called the ‘plaintiff’ and the other party in the divorce proceedings is called the ‘defendant’.
Q: How can a marriage be dissolved in Pakistan?
- There are several ways to dissolve a marriage. For example, the husband can divorce on his own accord without court intervention (usually called ‘talaq’); divorce by agreement between the husband and wife without court intervention; or divorce by court decree, where the wife exercises her contractual right to divorce.
- What is ‘Khula’?
- Khula is the Islamic right of a wife to seek dissolution of her husband’s marriage through court intervention. The woman seeks ‘khula’ and the man gives ‘talaq’.
- What are the grounds for a wife to seek divorce under Pakistani law?
- Under the Muslim Dissolution of Marriage Act, a woman is entitled to obtain a decree of dissolution of marriage on one or more of the following grounds
Her husband’s whereabouts are unknown for four years; her husband has neglected or failed to provide maintenance; her husband has been imprisoned for more than seven years; her husband has failed to fulfill his marital obligations for three years; her husband was impotent at the time of marriage; her husband has been insane for two years.
The following are examples of such cases: underage marriage, a husband who is cruel to her, leads a disorderly life, tries to force her to lead an immoral life, venereal disease, incurable leprosy, disposes of her property, fails to observe religious customs, fails to live with her husband within the limits set by Allah swt.
In addition, a wife can dissolve the marriage for other reasons under Islamic law.
- What is the procedure for ‘khula’ (dissolution of marriage) in Pakistan?
- If the right to divorce is not given in the Nikanama (marriage contract), the wife will apply for ‘khula’ to the court. When the wife files a suit for dissolution of marriage, the court sends notice to the other party, i.e. the husband, and if the husband does not appear after going through the procedure of sending letters and public notice, the court can proceed out of court and pass judgment. If the husband or his representative appears, a statement must be filed and the court must then set a date for a pre-trial proceeding for settlement. If reconciliation fails, the court will issue a judgment of dissolution of marriage.
- Does obtaining a Court Coola Judgment finalize the dissolution of marriage?
- No. The court must issue a court hula judgment before the dissolution of marriage can be finalized. After obtaining the Hula court judgment, you must apply to the chairman of the competent arbitration board/union committee to obtain a certificate of dissolution of marriage.
Q: Can I delegate the right to declare divorce to my wife?
J: Yes, the wife can get a divorce. If the right is granted in the Nikanama (marriage contract), it is called talaq-e-tahwees (legal divorce). According to section 18 of the Nikanama, the husband can delegate the right to divorce upon the conclusion of the marriage, in which case the wife has the right to divorce and the rest is the exclusive prerogative of the husband. However, if the wife has no such right and wishes to dissolve the marriage, she can file an action for ‘dissolution of marriage’ under Qura or seek divorce through court intervention.
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Q: How do I know where my divorce case will be filed in Pakistan?
J: The case can be filed at the place where the marriage took place or was registered and where the defendant resides. The wife can also file the case in the place where she normally lives.
- Can a Pakistani wife abroad get divorced in Pakistan over the internet?
J: No.
Q: Can an overseas Pakistani woman file for divorce without coming to Pakistan?
J: Yes, but therefore his marriage has to be registered in Pakistan and he can appoint someone through a special power of attorney to represent him in court.
Q: What are the laws on custody for divorced spouses in Pakistan?
J: The Guardianship and Custody Act is the governing law, but the Family Court can also hear custody cases under the Family Court Act 1964. The general rule is that the interests and welfare of the minor child should be paramount.
- What are the property rights of the wife after a divorce in Pakistan?
J: The dowry/jahaiz given to the wife is the exclusive property of the wife during or after the marriage. On dissolution of the marriage, the wife also has the right to claim alimony and maintenance payments that were suspended during the Iddat period.
- How can a husband divorce his wife in Pakistan?
- According to the Muslim Family Law Ordinance, a man who wishes to divorce his wife must, as soon as possible after the pronouncement of Talaq/divorce of any kind, submit a written notice to the President of the Union Council and also send a copy to the wife.
Within thirty days of receipt of the notice of Talaq, the President shall appoint an Arbitration Committee for the purpose of reconciling the parties, and after the expiration of ninety days, the divorce shall take effect if the reconciliation is not successful.
- Can a husband and wife dissolve their marriage by mutual consent?
A: Yes, they can dissolve their marriage by mutual consent; such a divorce is called Talaq-e-Mubarat, and the literal meaning of Mubarat is “to disengage from each other”. The offer of separation in Mubarat can be made by both the wife and the husband, and as soon as it is accepted, the dissolution is complete.”
Q: My husband has been away for a long time, can I end my marriage?
J: Yes, you can end this marriage according to the Muslim Law on Dissolution of Marriages of 1939 if you do not know where your husband has been for four years.
Q: Can a Talaq message sent through the President of the Council of the Union be revoked?
J: Yes, the divorce/talaq notice can be revoked within 90 days from the date of sending.
Q: How can I protect myself against abuse from my spouse and his/her family members?
J: If you are threatened, beaten, etc. by your spouse, you can file a complaint against your spouse at the police station.
Q: I have filed for divorce, is it safe to remarry now?
J: You should not plan to remarry until the divorce is final.
VOJ provides services and advice on the resolution of marriage and family disputes, drafting of divorce agreements, divorce counseling in Pakistan, divorce for expatriate Pakistanis, khula for expatriate Pakistanis, marriage in courts, registration of marriage, polygamous marriages, non-notification of talaq, division and settlement of matrimonial issues, issues related to remarriage.
