A Muslim Marriage is a civil agreement, which can be completed and dissolved like any other agreement; however, it is certainly dissolved on the demise of either of the spouse. Also, Islam similarly grants spouses’ legal right to dissolve marriage contract, therefore both the spouses are allowed with a religious right to dissolve a marriage. But, the husband, in Islam, has an absolute legal right of divorce by way statement of ‘Talaq’, which literally turns into divorce. On the other hand, a wife in Islam can only practice the right of divorce if the same is given to her in the marriage contract or Nikkahnama at the time of marriage, which right should be noted in the Nikkahnama. Nonetheless if in the event, the right of divorce is not given to the wife then she has option of filing for ‘Khula’ which factually means ‘untying the knot’ (the right of a wife in Islam to pursue dissolution of marriage from her husband through interference of the court) before the Family Courts to get a judicial divorce.
It is significantly important to notice that whether the marriage has been ended through ‘Talaq’ or ‘Khula’, as it must be officially recognized be unsuccessful which significant doubts may surface about the efficiency of the divorce. Consequently, as per Pakistani Law it is essential to get dissolution of marriage certificate from relevant government office as written evidence of dissolution of marriage. But, it is also important to note that as per Islamic Scholars, divorce once pronounced by the husband and ‘Khula’ once obtained from the court of law is effective and binding.
Divorce by Husband
As per Muslim Personal Law and under section 7 of the Muslim Family Law Ordinance1961, the husband can give divorce (Talaq) verbally as well as by way of Document of Divorce. The husband in this respect has to send written notice by registered post to the concerned Union Council or government office in charge for issuing divorce certificates. In the said notice, the husband must mention the address of his ex-wife, thus allowing the union council or the government office to issue notice to her by registered post, in pursuance of which, it shall establish or refer the same to the Arbitration Council within 30 days of reception of notice for the purpose of understanding and settlement amongst the husband and wife, if likely. The reason of proposing this legislation was to safeguard women from a prompt and oral divorce, so that if a woman re-marries, she is not challenged with a trivial criminal case and penalizing. Hence, it is necessary for a woman to be absolutely clear about her conjugal status and to have documentary evidence that she is accurately divorced. Notice of ‘Talaq’ can be served on a wife, with the permission of concerned union council office, through her father, mother, adult brother or sister – but no other relatives. If this is not possible because her locations are unspecified and notice cannot be served on her through her close family, the husband can still serve notice through a newspaper approved by the concerned Union Council.
Divorce by Wife
In Islam, a wife can dissolve her marriage individually only if the right of divorce has been absolutely delegated to her by the husband in the marriage contract called Nikahnama. However, if the right to divorce has not been allocated to the wife, then in such conditions, she can dissolve the marriage by applying for ‘Khula’ from the Family Court, which is also recognized as dissolution of marriage by way of judicial divorce. Khula is the dissolution of marriage initiated by the wife and is granted by the Family court. To apply for ‘Khula’ the wife would need to file a suit for ‘Khula’ in the Family Court under the Dissolution of Muslim Marriage Act 1939 also in Muslim Family Act 1964, on the grounds that she feels she can no long live with her husband “within the limits prescribed by Allah’ and such a declaration on oath made in her suit would be enough to establish her case for Khula.
Following are the grounds on which wife can obtain Khula
- Desertion by husband
- Failure to provide maintenance
- Husband contracting a polygamous marriage(second marriage without permission) in violation of established legal procedures;
- Husband’s imprisonment for seven years;
- Husband’s failure to perform marital obligations
- Husband’s continued impotence from the time of the marriage.
- Husband’s mental illness or his serious illness.
- Husband is associated with women of evil repute.
- Wife’s exercise of her option of puberty
- Husband’s cruelty (including physical or other mistreatment, unequal treatment of co-wives);
- Husband attempts to force the wife to lead an immoral life;
- Husband dispossesses the wife from the own property;
- Husband obstructs the wife from practicing religion;
- Any other ground recognized as valid for the dissolution of marriage under Muslim Law.
After hearing the case, the Family Court will issue decree and send notification to the Chairman Arbitration Council or Union Council, which proceeds as if it received the notice of ‘Talaq’ and once the ‘Iddat period’ over the ‘Khula’, becomes effective. At the time of filing of ‘Khula’ suit, the wife usually has to return ‘Haq -Mehr’ (Dower) and other benefits received from husband, gifts received from husband’s family do not have to be returned as it is decided by the Court as to how much and what is to be returned on the facts of the case.
