Talaq: Divorce by Husband
Generally, the term “divorce” comes from the Latin word divortium, meaning separation. The person who is divorced is termed a Divorcee.
Under Muslim law, the dissolution of marriage occurs either by the death of a spouse or by divorce. Divorce can be initiated by the husband unilaterally; it is termed as Talaaq., or by mutual agreement of both spouses, also known as Talaq-e-Mubarat.
In Islam, the husband holds the exclusive right to initiate divorce, known as talaq. To give a divorce, the husband must verbally announce it to the wife. This verbal talaq is recognised in Sharia law.
However, the divorce process in Pakistan legally mandates that the talaq nama in Urdu or English be in written form and registered with the relevant authority, typically the Union Council or Arbitration Council. These legal requirements are essential for a valid talaq in Pakistan.
Islamic Divorce:
Islamic law recognises three types of Divorces; here are the three broad categories:
1. Talaq-e-Ahsan:
This is the most common and approved divorce form. It involves a single pronouncement of Talaq followed by a three-month Iddat period, during which if the wife must observe three menstrual cycles. The divorce is revoked if the couple resumes cohabitation or conjugal relations during this iddat period. This leaves room for reconciliation after the first talaq for both spouses.
2. Talaaq-i-Hasan:
This form of divorce involves three pronouncements of Talaq made in successive periods. The husband makes one declaration, waits for another menstrual cycle, and makes another declaration. This procedure of divorce longs for typically three months i.e., three menstrual cycles. After the third and final pronouncement, the marriage is dissolved if there is no reconciliation.
3. Talaaq-al-Biddat (Triple Talaq):
This is an irrevocable form of divorce in which the husband pronounces Talaq three times at once. Most schools of thought in Islam do not appreciate this type of Divorce because it does not allow for reconciliation.
Iddat Period After Divorce
The mandatory period of Iddat after divorce in Pakistan is 90 days according to state law. Whereas, Islamic law mandates the completion of menstrual cycles, which also typically amounts to approximately 90 days. The primary purpose of observing Iddat is to ensure that no pregnancy exists from the former husband.
Other Modes of Dissolution of Marriage
Talaq-e-Tafweez (Delegated Right of Divorce):
In this form of divorce, the husband delegates the right to divorce to his wife through a mutual agreement. In Pakistan, it is optional in clause 18 of Nikahnama. There are two types of delegated right of divorce i.e., conditional or unconditional. The wife can exercise this right if necessary as per the agreed terms of Nikahnama.
Khula
This divorce is initiated by the wife, who seeks a separation by returning her dower (mahr) to the husband. It is done through judicial proceedings.
Talaq-e-Mubarat:
This is a mutual divorce in which both husband and wife agree to part ways. It involves mutual consent, and all marital rights and obligations end upon dissolution. This agreement may contain other terms and conditions that avoid future conflicts.
Divorce Law in Pakistan
Indeed, the law provides a prearranged procedure of divorce in Pakistan under The Muslim Family Laws Ordinance 1961. Still, there is no specific form of pronouncing divorce is present in thelaw. No specific words are prescribed for verbal divorce. Although there could be multiple divorce reasons in Pakistan present, legally, there is no prerequisite or reason required for a husband to give a divorce. It can be observed in the judgment reported as 2008 YLR 293, where it was held that;
Islam does not prescribe a specific method for divorce; it requires a clear intention from the husband to annul the marriage. No particular words are necessary for Talaq, and it doesn’t need to be pronounced in the wife’s presence or even addressed to her.
Difference Between Divorce and Khula
The table below will help to understand the basic difference between divorce and Khula
| Khula | Divorce |
|---|---|
| Khula is initiated by Wife. | Divorce is initiated by Husband. |
| Wife seeks dissolution of marriage through family court. | Husband pronounces divorce unilaterally without court intervention. |
| Court involvement is necessary to grant Khula. After that, the Union Council issues a NADRA Divorce certificate. | It directly goes to the Union Council to issue the NADRA divorce certificate. Court involvement is not required unless there is a dispute. |
| Based on the wife’s dissatisfaction, inability or unwillingness to live within the marriage limits set by Allah. | Based on the husband’s unilateral decision to end the marriage for any reason whatsoever. |
| Needs judicial approval and evidence. | It requires only the husband’s pronouncement. |
| The husband may not have to pay the dower (mahr) if granted. | The husband must pay the dower (mahr) and any due maintenance. |
| The court encourages amicable resolution and settlement through mediation. | Generally more straightforward, without mandatory mediation. |
| If reconciliation efforts fail, it is considered as a last resort. | It can be issued at the husband’s discretion. |
| The cost of this process may include legal fees of court and engaging counsel. | The cost of divorce in Pakistan may only include the stamp paper fee and newspaper publication fee. |
Law For Divorce in Pakistan
Difference between Khula and Divorce can also be observed by are reading of judgments reported as 2003 MLD 1077. Reliance was placed on PLD 1967 SC 97 , and PLD 1980 SC 160, where it was held that;
Khula is the wife’s right to dissolve the marriage by paying consideration, requiring a Qazi or Judge’s decision when she cannot live with her husband. Talaq is the husband’s right to divorce; thus, the key distinction is that Khula is initiated by the wife through the court, while Talaq is exercised by the husband.
Essential Conditions for a Valid Divorce
Before delving into the divorce procedure in Pakistan, it is essential to highlight the general conditions required for a valid Talaq:
- Capacity: Every Muslim husband who is sane and has attained the age of puberty is legally competent to pronounce Talaq. On the other hand, a minor or a person of unsound mind cannot do so. Provided that it is pronounced during a lucid interval (in cases of insanity).
- Free Consent: The husband’s consent to divorce must be free from coercion, undue influence, or intoxication, except for the Hanafi law where an Issuing Divorce in the State of Intoxication (voluntary intoxication) is considered valid.
- Formalities: According to the rules of Islamic Divorce, a divorce can be oral or written. No specific wording is required as long as the intention to dissolve the marriage is clear. However, Shia law mandates that the Talaq be pronounced orally and in the presence of two witnesses.
- Express Words: The words of Talaq must indicate the husband’s intention to end the marriage. In case of ambiguity, it must be proven that the husband intended to dissolve the marriage.
Divorce Procedure in Pakistan
Law for divorce in Pakistan is governed by Section 7 of The Muslim Family Law Ordinance 1961. It is a straightforward explanation of the divorce process in Pakistan. It provides a comprehensive roadmap; fulfilling its prerequisites is necessary to complete a Pakistani divorce
THE FOLLOWING STEPS WILL GUIDE YOU ON HOW TO FILE DIVORCE IN PAKISTAN:
TalaqNama/Divorce Notice
When a husband decides to divorce his wife through talaq, he must give written notice or TalaqNama in Urdu or English to the Chairman of the Union Council as soon as possible after the pronouncement. A copy must also be provided to the wife. This notice of talaq must be printed on stamp paper of proper value.
Contents Divorce Deed or TalaqNama
- Specifying the type of divorce being issued.
- It includes the personal details of the spouses.
- It should provide the marriage details, such as the date of marriage and the amount of dower (Haq Mehr), whether it is prompt (Muajjal) or deferred (Ghair Muajjal).
- It may include any terms agreed upon between the spouses.
- Stating the reasons of divorce in the divorce deed is optional.
Documents Required for Divorce in Pakistan
To file divorce in Pakistan following documents are required;
- Valid ID: such as CNIC for Pakistani nationals and Passport or foreign ID in the case of Overseas Pakistani or foreign nationals.
- Nikah Nama: proof of marriage, i.e., Nikahnama or Marriage Registration Certificate.
- Divorce deed format: A properly written divorce deed printed or written on a Stamp paper.
Mode of Serving Divorce Paper to the Wife and Union Council
Divorce papers must be served to the wife via a recognised courier, with copies of Divorce notices sent to the Union Council nearest the wife’s residence or where the nikah was registered.
If the wife’s whereabouts are unknown:
Then, the notice of divorce should be sent to the address listed in the NikahNama or her last known residence. Alternatively, it can be served through her father, mother, or adult brother or sister. If all previous methods fail, the notice may be published in a newspaper with the approval of the chairman of the Union Council.
Penalty for Non-Compliance
If the husband fails to give the required notice under section 7(1) of the Family Laws Ordinance, 1961:
- He may face simple imprisonment for up to one year.
- He could be fined up to five thousand rupees.
- He may also face both imprisonment and a fine.
Effectiveness of Talaq
The talaq will take time to be effective. Instead, it becomes effective 90 days after the notice is delivered to the Chairman. This waiting period allows time for possible reconciliation. This 90-days period may also be calculated Iddat period after Divorce.
Role of Union Council
Within 30 days ideally of receiving the talaq notice:
- The Chairman must form an Arbitration Council.
- The purpose of this council is to help the couple reconcile and avoid divorce if possible.
- The council will take all necessary steps to encourage reconciliation.
Issuance of NADRA Divorce Registration Certificate
If reconciliation fails, the Union Council will document the attempts and, after the third notice, issue a divorce registration certificate sanctioned by NADRA. If the wife is unavailable, the certificate is issued to the husband, and the wife can collect it later.
The Union Council’s role is critical in ensuring a fair divorce process in Pakistan that allows both parties plenty of time to reconcile. Legal representation by the best family lawyer at Lex.com.pk can help you navigate divorce procedure smoothly.
Triple Divorce Law in Pakistan
Islamic views regarding instant talaq where all three divorces are been pronounced at a time may vary amoung different sects and school of thoughts. Such as can be observed in Mohmodan Law by Amir Ali, Vo1.II 7th Edn.; P/91; Mulsim Law of Divorce by K.N. Ahmed 1984 and Chapter 4 of Muslim Law of Divorce, Chap.4 by K.N. Ahmad, 1984 ref. and judgment reported as 2003 Y L R 2623 which says that; Different Islamic schools vary on the validity of triple Talaq (divorce). Fiqah Jaffaria, Malikies, and Shafies do not recognize it as valid, while Hanblies consider triple divorce as one if the marriage is consummated and pronounced in a specific form.
Connection Between the Islamic Concept of Triple Divorce and Law Under the Muslim Family Law Ordinance, 1961
The Islamic concept of triple Talaq (instant divorce) and its validity have been a matter of debate. The Holy Quran does not promote divorce as an immediate action that severs all ties instantly, particularly in a relationship where spouses share life’s highs and lows.
The difference of opinion on the validity of instant divorce led to legislative intervention in the form of Section 7(3) of the Muslim Family Laws Ordinance, 1961.
This provision allows a 90-day period for revocation of the divorce, yet aligns it with the Islamic teachings and gets rid of the rigid views that have developed over time that stray from the original moral principles of Islam.
Reasons Behind the Prevention of Instant Talaq
Divorce (Talaq) in Islam is highly discouraged by the Qur’an. The act of divorce places a woman in a vulnerable position and gives a male a dominating position, exposing her to various social and economic hardships, including a lifelong stigma. In most cases, a divorcee woman, left without support, may be forced into desperate circumstances. For the reason discussed herein, the legislature infused section 7(3) of the Muslim Family Law Ordinance, 1961 to provide spouses a reasonable time to rethink and reconcile.
The relevant section is reproduced as under;
“7(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
