The procedure for Talaq (divorce) in Pakistan is governed by the Muslim Family Laws Ordinance, 1961, Section 7, which outlines the legal requirements and steps to be followed:
- Pronouncement of Talaq: A husband who wishes to divorce his wife must, after the pronouncement of Talaq in any form, provide written notice to the Chairman of the Union Council, along with a copy to the wife.
- For those following Fiqah-e-Jafria (Shia law):
- The Talaq must be pronounced voluntarily, in literal Arabic, in the physical presence of two just witnesses.
- The pronouncement is ineffective if made jokingly, under anger, intoxication, insanity, duress, or coercion.
- Notice to Chairman: According to the Muslim Family Laws Ordinance, 1961, Section 7(1), after pronouncing Talaq, the husband must notify the Chairman of the Union Council in writing.
- Punishment for Non-Compliance: As per the Muslim Family Laws Ordinance, 1961, Section 7(2), failure to comply with the notice requirement can result in simple imprisonment for up to one year, a fine of up to five thousand rupees, or both.
- Effectiveness of Talaq: According to the Muslim Family Laws Ordinance, 1961, Section 7(3), Talaq is not effective until 90 days after the notice has been delivered to the Chairman, unless revoked earlier.
- In Naheed Sidique v. D.D.O. Litigation and others, [2014 CLC 813], the court clarified that the divorce becomes effective 90 days from the date of pronouncement, not from the date of notice to the Chairman.
- Arbitration Council: Within 30 days of receiving the notice, the Chairman constitutes an Arbitration Council to attempt reconciliation between the parties.
- Pregnancy: If the wife is pregnant at the time of Talaq, the divorce will not be effective until the end of the pregnancy or the 90-day period, whichever is later.
- Remarriage: A wife whose marriage has been terminated by Talaq can remarry the same husband without an intervening marriage, unless the termination was effective for the third time.
- Mst. Ghulam Fatima versus Abdul Qayyum and others, [PLD 1981 460], highlights the necessity of notice for a Talaq to be effective and the distinction between Talaq, Khula’ and Mubara’t.
Additional Points to Consider
- Citizenship: The Muslim Family Laws Ordinance, 1961, applies to all Muslim citizens of Pakistan, wherever they may reside. In Mst. AMIRA BOKHARI v. Faqir Syed JAMEEL‑UD‑DIN BOKHARI and 2 others, [PLD 1994 Lahore 236], the court clarified that the ordinance applies to Muslim citizens of Pakistan, regardless of their location
- Shia Law: In Federation of Pakistan v. Mst. Tahira Begum and others, [1994 SCMR 1740], the Supreme Court held that validity of divorce under Fiqah Jafria should be determined if both parties belong to that school of thought. Mst. MARYAM BANG versus HUSSAIN ALI AND ANOTHER, [1984 CLC 1961], reinforces the importance of adhering to the specific requirements of Shia law for pronouncing divorce. It clarifies that a written divorce deed, without oral pronouncement in the prescribed manner, is not valid
- Notice: Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi and Others, [1984 SCMR 583], reinforces the importance of adhering to the procedural requirements outlined in the Muslim Family Laws Ordinance, 1961, specifically concerning the notice of Talaq to the Chairman of the Union Committee
Conclusion
In conclusion, the procedure of Talaq (divorce) in Pakistan under Muslim Family Laws requires adherence to specific legal and religious guidelines. This includes the pronouncement of Talaq, written notice to the Chairman of the Union Council, and, in some cases, reconciliation efforts through an Arbitration Council. The effectiveness of the Talaq depends on fulfilling these conditions and observing the mandatory waiting period, with special considerations for those following Fiqah-e-Jafria (Shia law). The judgments provided clarify various aspects of these laws, emphasizing the importance of procedural compliance and the rights of both parties involved.