A Muslim marriage is a civil contract which can be executed and dissolved like any other contract. As per the law, marriages can be dissolved either by way of Talaq or Khula. The divorce laws in Pakistan primarily regulated by Muslim Family Law Ordinance 1961, Divorce Act 1869 and Dissolution of Muslim Marriages Act 1939.  

Talaq: 

Talaq is the husband’s sole prerogative to dissolve the marriage without involving a court. The wife can dissolve the marriage if granted the right of divorce in the Nikahnama or by seeking Khula from the family court.

The husband has the right to divorce through Talaq without seeking court intervention, as established in the cases of Muhammad Bashir Ali Siddiqui v Sarwar Jahan Begum (2008 SCMR 186) and Mujahid Kamran v Mst. Saira Aziz (2022 CLC 24). Any conditions or restrictions on the right to divorce, even if agreed upon by both parties, are considered invalid.

Although the husband is not required to go to the family court, according to Section 7 of the Muslim Family Law Ordinance 1961, he must send a written notice to the Union Council to make the divorce legally effective. The notice can be served on the wife’s parents or siblings, or through a newspaper if the woman’s family refuses to receive it. After the 90-day iddat period, the Union Council issues a certificate of enforcing talaq if reconciliation efforts fail. Talaq takes effect after the completion of the 90-day iddat period or after pregnancy ends. Failure to comply with the procedures can result in imprisonment or a fine. The certificate of divorce must be registered with NADRA to obtain a computerized divorce certificate.

Verbal talaq without written notice to the Union Council is not effective. The rules under the Muslim Family Law Ordinance 1961 aim to protect women from instant divorce and allegations of bigamy, ensuring clear marital status and documentary proof of divorce for women.

Khula: 

The wife can seek dissolution of marriage by way of judicial Khula from the family court if that the wife cannot live with her husband ‘within the limits prescribed by Allah’.  

Section 2 of the Dissolution of Muslim Marriages Act 1939 provides the grounds to wife for dissolution of marriage by way of Khula: 

• Absence of Husband: If the husband is missing for four years then the wife is entitled to get divorce. The decree is effective after six months and during this time if the Husband comes and is willing for Matrimonial relations then the decree will be set aside; 
• Failure to provide maintenance: if the wife does not get sufficient maintenance for two years or husband has taken an additional wife in contravention of the provisions of the Ordinance; 
• Imprisonment of Husband: if the Husband is to be imprisoned for 7 years or more;  
• Failure to perform mutual obligation: if the Husband does not fulfill the marital obligations for 3 years; 
• Impotency of Husband: impotency means inability to have sexual intercourse is also a ground for divorce if the husband is impotent at the time of marriage and continue to be so provided that where he ceases to be impotent and proves it within a period of one year from the passing of decree the decree will be set aside; 
• Insanity of the husband: the divorce can be filed on the ground of husband’s insanity for 2 years or if he is suffering from leprosy or a virulent venereal disease; 
• Repudiation of marriage: the wife can avoid the marriage before attaining the age of eighteen years if she has been given in marriage by her father or guarding before the age of sixteen; 
• Cruelty of the husband: this includes assault, associating her with women of evil repute, forcing her to live immorally, disposing or preventing her from her property, preventing her from religious practices, unequal treatment in case of more than one wife. Cruelty not only includes physical torture but also includes mental torture, hateful attitude of husband or other members of the family and other circumstances which forces the wife to abandon her husband’s house as in the case of Muhammad Zahir-ud-Din Babar v Mst. Shazia Kausar and others (2016 CLC 332); and 
• Other grounds: marriage can be dissolved on any other ground recognized under Muslim law. 

The decree for dissolution of marriage is generally not appealable, except in cases of habitual assault and cruelty by the husband (PLD 2022 Peshawar 1). In the case of Khula, the wife is required to return haq mehr/dower and other benefits to the husband, while gifts do not need to be returned. Failure to return these does not affect the validity of Khula, but the husband can initiate a civil suit for recovery of zar-i-khula.

Therefore, in Muslim marriage, both spouses have a religious right to dissolve the marriage. The husband has an inalienable legal right of divorce through Talaq, while the wife can exercise the right of dissolution if granted in the Nikahnama or through Khula from the competent court.