Section seven of the Muslim Family Law Ordinance,1961 contains the substantive provisions on divorce/talaq in Pakistan and prescribes the procedure for effective and binding force. It states that soon after the pronouncement of talaq in any form whatsoever, a notice in writing is to be sent to the wife and chairman arbitration council indicating the factum of divorce and thereafter chairman arbitration council shall within one month try to effect reconciliation between the spouses. Contravening the provisions of this section is a punishable offence.
As per Muslim Personal Law and under section 7 of the Muslim Family Law Ordinance the husband pronounces talaq and sends written notice by registered post to the Union Council, mentioning the address of his ex- wife. Thereafter the concerned union Council sends a copy of the notice to the wife by registered post and it constitutes an arbitration Council within 30 days of receipt of notice. Once the iddat period (90 days from the date the union council receives the talaq notice) is over, the union council will issue a certificate of Talaq being effective to the husband and wife.
Verbal Divorce:
A verbal talaq is not recognized by law and the husband’s failure to send written notice to the Union Council makes the talaq ineffective. Even if the Union Council issues a certificate of talaq, if notice was not properly served on the wife, the talaq can be challenged.
Talaq-i-Tafweez and Mubarat (Mutual Divorce)
In both of these forms of divorce, there is no need to approach the courts, meaning that the marriage can be dissolved rapidly, cheaply and with few procedural problems. In this scenario, both the husband and wife can sign a Mutual Divorce Deed and submit a written notice under Section 8 of the Muslim Family Law Ordinance to the relevant union council.”
Kinds of divorce/ talaq:
TALAQ-E-AHSAN:
‘Talaq-e-ahsan’ is a single pronunciation of ‘talaq’ by the husband, followed by a period of abstinence. The period of abstinence is described as ‘iddat’. The duration of the ‘iddat’ is ninety days or three menstrual cycles or three lunar months.
TALAQ-E-HASAN:
‘Talaq-e-hasan’ is pronounced in the same manner as ‘talaq-e-ahsan’. Herein, in place of a single pronouncement, there are three successive pronouncements. After the first pronouncement of divorce, if cohabitation resumes within one month, the divorce pronouncement is treated as revoked.”
TALAQ-E-BIDAT OR TRIPLE TALAQ:
The third kind of ‘talaq’ is – ‘talaq-e-bidat’. This is effected by one definitive pronouncement of ‘talaq’ such as, “I talaq you irrevocably” or three simultaneous pronouncements, like “talaq, talaq, talaq”, uttered at the same time, simultaneously.
Notice of talaq:
Notice of talaq can be served on a wife with permission of the concerned government office through her father, mother, adult brother or sister – but no other relatives. If this is not possible because her whereabouts are not known and notice cannot be served on her through her immediate family, the husband can still serve notice through a newspaper approved by the concerned government office.It is important to receive a notice from the concerned union council, whereas it has been reported that in some cases, families have refused to receive notices, fearing that it is a notice of talaq and hence talaq will not become effective.”
Proof of Notice of Talaq:
Proof of talaq can be established through an acknowledgment due receipt, which shows the dispatch of the talaqnama by the husband to the chairman of the union council. The receipt, bearing the signatures of the chairman, serves as evidence of the divorce.
In Islamic divorce law, the revocability of a divorce by the husband hinges on the wording and structure of the Divorce Deed. It is crucial to draft the deed in a manner that suggests a single divorce, as this allows the husband to revoke it without intervening in the marriage, up to three pronouncements.
Therefore, careful consideration is needed in preparing the Divorce Deed to ensure that it is treated as a single divorce. If the deed indicates a triple divorce, revocation without intervening in the marriage becomes more complex, emphasising the need for caution in exercising this legal act.”
Conclusion:
Section 7 of the Muslim Family Law Ordinance,1961 contains the substantive provisions on divorce/talaq in Pakistan and prescribes the procedure for it to be effective and binding. It states that soon after pronouncement of talaq in any form whatsoever, a notice in writing is to be sent to the wife and chairman arbitration council indicating the factum of divorce and thereafter chairman arbitration council shall within one month try to effect reconciliation between the spouses.
Section 7 is against the dictates of sharia as three continuous talaqs in the Hanafi system of interpretation takes effect soon on its pronouncement and no reconciliation can be carried out thereafter. Pakistan is a predominant Hanafi country therefore section 7 must conform to the Hanafi interpretation of talaq. The need of the hour is new legislation on Section 7 of Muslim Family Law that eliminates the requirement for notice after three continuous talaq/divorce by either spouse.”
I want to dedicate this article to my mentor’s Advocate Sir Usman Sheikh and to Sir A.D Dahar from whom I’ve learnt the art of advocacy.
