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 (extra-judicial way to dissolve marriage) is a sole prerogative of the husband that cannot be taken away at any cost. On the other hand, wife can either dissolve the marriage if the right of divorce is given to her by the husband in a Nikahnama (documentary proof for marriage) or by seeking Khula from the relevant family court.
A husband can divorce his wife by way of Talaq and without approaching any Court of Law for dissolution of marriage. The approach in this area could be viewed from the case of Muhammad Bashir Ali Siddiqui v Mst. Sarwar Jahan Begum and other (2008 SCMR 186), where the Supreme Court held that the husband has a right to divorce with his free will so any condition or restriction imposed on the right to divorce is illegal. If any condition is mentioned in Nikahnama for example award of damages on account of alleged unjustified divorce is against the basic principles of Islamic law. This was further clarified by the case of Mujahid Kamran v Mst. Saira Aziz and others (2022 CLC 24), where the Lahore High Court held that any condition, even if inserted with the consent of the parties, is not valid.
Although, the husband is not required to approach family court for the dissolution of marriage, but as per Section 7 of the Muslim Family Law Ordinance 1961, the husband is required by law to send the ‘written notice’ to the Union Council to make the divorce effective in the eyes of the law. In some circumstances, the Notice can be served on her parents or siblings but no other relative. In case where the woman’s family refuses to receive the notice, it can also be served through newspaper. The Union Council then sends the copy of notice to the wife. Consequently, an arbitration council is established to bring about reconciliation between the parties. However, if the parties unable to resolve the dispute, then after the 90 days of iddat period, from the date the notice was received, the Union Council issues certificate of enforcing talaq. It is important to note that talaq only takes effect when 90 days of iddat period is completed or in case of pregnancy when the pregnancy ends. Failure to comply with the procedures can result in imprisonment for up to one year or fine or both. After receiving the certificate of divorce from the Union Council, the Certificate must be registered with NADRA who will then issue computerized divorce certificate.
It is imperative to highlight that the Talaq cannot be effective if it is verbal, and no written notice is not given to the Union Council. The rules under Muslim Family Law Ordinance 1961 are primarily intended to protect the women from instant divorce or from the allegations of bigamy. Therefore, the women should have a clear marital status and have documentary proof of divorce.
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- 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 not appealable except the dissolution of marriage made on the ground of habitual assault and cruelty by husband (PLD 2022 Peshawar 1). The consequence of Khula is that the wife has to return haq mehr and other benefits to the husband, but the gifts do not have to be returned. If the wife fails to return, this will not have any effect on the validity of khula, instead the husband can initiate the civil suit for recovery of zar-i-khula.
Therefore, as Muslim marriage is a civil contract, both the spouses are entitled with a religious right to dissolve marriage. The husband has an inalienable legal right of divorce by way of ‘Talaq; while, a wife, can exercise the right of dissolution of marriage if the same is granted to her in the Nikkahnama or via ‘Khula’ from the competent court of law.
