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Various Processes of Divorce
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Provisions of Muslim Family Laws Ordinance, 1961, to apply
At present the registration of the dissolution of all Muslim marriage, effected by the parties are made under the provisions of Sections 6—8 of the Muslim Marriages and Divorces Registration Act, 1974. It may be mentioned here that the divorces an effected as per the provisions of the Muslim Family Laws and as detailed in Sections 7 and 8 of the Muslim Family Laws Ordinance, 1961. What the Act of 1974 has provided, is the modes of registration of the divorces already effected between the parties under the provisions of Muslim law, processed through the Muslim Family Laws Ordinance, 1961.
Different forms of dissolution of Muslim Marriages maintained
The contract of marriage under the Muslim law may be dissolved in any one of the following forms:
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(1) |
By the husband at his will, without the intervention of a Court. |
(2)
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By mutual consent of the husband and wife, without the intervention of a court by a judicial decree at the suit of the husband or wife.
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As per the provisions of Shariat law, the wife could not divorce herself from her husband without his consent, except under a contract whether made before or after marriage, but she might, in some cases, obtain a divorce by judicial decree. Under Section 8 of the Muslim Family Laws Ordinance, 1961, where the right to divorce has been delegated to the wife in the Nikahnama, the wife can effect the divorce by exercising her right of divorce, that is, Talak-e- Tafweez. There are, of course, other modes of divorce such as "Khairul Baloog" Option of Puberty, Khula, Mubara'at etc. The Muslim Family Laws Ordinance of 1961 has not disturbed the different forms of Talak but has only introduced the formalities of notice etc.
Khula and Mubara'at
When the divorce proceeds from the husband, it is called Talak. When it is effected by mutual consent, it is called Khula or Mubara'at, according to the terms of the contract between the parties.
Divorce by Talak
Any Muslim of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any cause.
Contingent Divorce
A divorce may be pronounced so as to take effect on the happening of a future event. In an Allahabad case, the husband agreed to pay his wife maintenance within a specified time and in default the writing to operate as a divorce. It was held that on the husband's default, the writing took effect as a valid divorce.
Oral Talak in the Shariat law
In the Muslim Shariat law, particular form of words is prescribed for effecting a Talak. If the words are expressed (Saheeh) or well understood as implying divorce, no proof intention is required. If the words are ambiguous (Kinayat), the intention must be proved. It is not necessary that the Talak should pronounce in the presence of the wife or even addressed to her. The Talak pronounced in the absence of the wife takes effect though not communicated to her, but for purposes of dower, it is necessary that it should come to her knowledge, and her alimony may continue till she is informed of the divorce.
Divorce (Talak) under the Muslim Family Laws Ordinance, 1961 |
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(1) |
Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talak in any form whatsoever, give the chairman notice in writing of his having done so and shall supply a copy thereof to the wife. |
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(2) |
Whoever contravenes the provisions of Sub-section (1), shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to ten thousand Taka or with both. |
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(3) |
Save as provided in Sub-section (5), a Talak unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under Sub-section (1) is delivered to the Chairman. |
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(4) |
Within thirty days of the receipt of notice under Sub-section (1), the Chairman shall constitute an Arbitration Council for the purposes of bringing about a reconciliation between the parties, and the arbitration Council shall take all steps necessary to bring about such reconciliation. |
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(5) |
If the wife be pregnant at the time Talak is pronounced, Talak shall not be effective until the period mentioned in Sub-section (3), or the pregnancy, whichever be later, ends. |
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(6) |
Nothing shall debar a wife whose marriage has been terminated by Talak effective under this section, from re-marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.
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Dissolution of Marriage otherwise than by Talaq
Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by Talaq, the provisions of Section 7 shall, mutatis mutandis, and so far as applicable, apply.
In any form whatsoever
It is important to note here that, in the Sub-section (1) of the section 7 of the Muslim Family Laws Ordinance, 1961, the different forms of divorce as in the Muslim Shariat law, have not been interfered with by the express use of the words ‘in any form whatsoever’. What have been made mandatory in the Ordinance are the formalities of the divorce, that is, the service of notices upon the chairman and the wife, by the use of the word "shall".
The effect of non-service of notices
The object of the Section 7 of the Muslim Family Laws Ordinance, 1961, is to prevent hasty dissolution of marriages. Unless the notice under Section 7 (1) is served upon the Chairman Union Council and ninety days expires from the day of on which such notice is delivered to the Chairman Talak would fail to operate.
Service of notices mandatory
Both in the cases of Syed Alt Newaj Gardezi and that of Mrs. Marina Jatoi, a great emphasis has been laid upon the observance of the requirements of Section 7(1) of the Family Laws Ordinance, 1961, that is, service of a notice upon the Chairman of the Union Parishad or Paurashava or Mayor, of the Corporation, as the case may be, with a copy to the wife for the purpose of effecting the divorce of a wife. It has also been held that non-compliance of the service of notices upon the Chairman, supplying a copy to the wife, renders the Talak legally ineffective, though a recent decision of the High Court Division has held to the contrary.
Wife also to serve notice
The procedures of the Section 7(1) are for the husband divorcing his wife. The Section 8 of the Ordinance provider that for the wife, divorcing her husband, by exercising her delegated rights, the provisions of Section 7. "mutatis mutandis", [with necessary changes] which means, notices to the Chairman with a copy to the husband in the place of, to the wife by the husband in the Section 7, shall apply. Hence, when the wife divorces, the copy of the notice to the Chairman and to the husband is to be supplied by the wife.
When Talak becomes effective
Talak becomes effective only after the expiry of the scheduled notice period of ninety days as provided in the Section 7(3) of the Ordinance of 1961. Failure of the Chairman to constitute Arbitration Council, results inconsequential.
Dissolution through Court not barred
A suit under Section 2 of the dissolution of the Muslim Marriages Act is not barred by reason of Sections 7 and 8 of the Muslim Family Laws Ordinance, 1961. Suit filed on two grounds Khula and Option of Puberty, ground of Khula found not triable by Civil Courts. Held, suit maintainable on the other ground, option of puberty. Husband falsely charging wife of adultery, wife entitled to dissolution of marriage through court, also Khula divorce can be obtained by him. Divorce pronounced under compulsion or in jest, valid. Marriage itself void, no question of divorce arises. A wife can exercise her right to divorce for her husband's nonpayment of the prompt dower, if the same is stipulated in the Kabinnama.
Talak in writing in Shariat Law now to be read with the provisions of Family Laws Ordinance, 1961
A Talaknama may only be the record, of the fact of an oral Talak or it may be the deed by which the divorce is effected. The deed may be executed in the presence of the Kazi or of the wife's father or of other witnesses. If the deed of divorce is in the customary form, it is called "manifest", provided that, it can be easily read and comprehended and the writer's name and the name of the addressee are clear, the deed is in customary form and manifest, the intention to divorce is presumed. Otherwise the intention to divorce must be proved by the person divorcing.
Oral divorce without notice ineffective
On the other hand, if the divorce deed is in the form of a declaration not addressed to the wife or any other person, it is not in customary form and is not effective. The earlier Shariat Law that if the Talaknama is in the customary and manifest, it takes effect immediately even though it has not been brought to the knowledge of the wife has now been changed. In the case of an oral Talak, communication was held to be necessary for certain purposes connected with dower, maintenance and her right to pledge wife's husband's properties for means of subsistence. When an acknowledgement of divorce was made by the husband, the divorce was held to take effect at least from the dale upon which the acknowledgement is made. By the Section 3(1) of the Muslim Family Laws Ordinance of 1961, the above interpretations of Shariat Laws of divorce have to be read with the provisions of the Sections 7 and 8 of the said Family Laws Ordinance of 1961.
Different modes of Talak
A Talak may be effected in any of the following forms:
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(1)
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Talak ahsan—This consists of a single pronouncement of divorce made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat. When the marriage has not been consummated, a Talak in the ahsan form may be pronounced, even if the wife is in her menstruation. Where the wife has passed the age for periods of menstruation, the requirement of a declaration during a tuhr is inapplicable; furthermore, this requirement only applies to an oral divorce and not a divorce in writing. |
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(2)
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Talak hasan—This consists of three pronouncements made during successive tuhrs, no intercourse taking place during any of the three tuhrs. The first pronouncement should be made during a tuhr, the second during the next tuhr and the third during the succeeding tuhr. |
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(3) |
Talak ul-bidaat or talak-i-badai—This consists of (i) three pronouncements made during a single tuhr either in one sentence, e. g. “I divorce thee thrice." or in separate sentences, e. g, "I divorce thee. I divorce thee, I divorce thee" or.(ii) a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage. e.g. "I divorce thee irrevocably."
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Shia law
Though the Shia lawyers do not recognize the validity of Talakul-bidaat. Talak-e-biddat is not outside the purview of Muslim Family Laws Ordinance and hence applicable to the Shias also.
When Talak becomes Irrevocable |
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(1) |
As per the provisions of Shariat law, a Talak in the ahsan mode becomes irrevocable and complete on the expiration of the period of iddat. |
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(2) |
A Talak in the hasan mode becomes irrevocable and complete on the third pronouncement, irrespective of the iddat. |
(3)
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A Talak in the badai mode becomes irrevocable immediately it is pronounced irrespective of the iddat and even though by way of jest. As the Talak becomes irrevocable at once, it is called Talak-i- bain, which is irrevocable Talak.
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As per the provisions of the Section 7(6) of the Muslim Family Laws Ordinance, 1961, the Talak becomes irrevocable only after the third time of divorce. Until a Talak becomes irrevocable, the husband has the option to revoke it which may be done either expressly, or by implications by resuming sexual intercourse upto three times.
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When Talak in writing becomes irrevocable
In the absence of words showing a different intention, a divorce in writing operates as an irrevocable divorce (Talak-i- bain), and takes effect immediately on its execution.
Talak-e-Tafweez
Although the power to give divorce belongs primarily to the husband, he may delegate the power to the wife who may exercise the said power of divorce as per the provisions of Section 8 read with section 7 of the Muslim Family Laws Ordinance, 1961.
As per the provisions of section 8 of the Muslim Family Laws Ordinance, where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by Talak, the provisions of Section 7 (notice, penalty for default, arbitration, conciliation and effectiveness of Talak) shall so far as applicable, apply. Unconditional delegation of power to wife is also valid.
Stipulation by wife for right of divorce
An agreement made, whether before or after marriage, by which it is provided that the wife should be liberty to divorce herself under specified contingencies, is valid. If the conditions are of a reasonable nature and are not opposed to the policy of the Muslim Law, it shall be effective as if a Talak had been pronounced by the husband. The power so delegated to the wife is not revocable, and she may exercise it even after the institution of a suit against her for restitution of conjugal rights.
In a case where a Kabinnamah gave the wife the power to divorce, herself if the husband "did not give her maintenance for two years", it was held that the wife would be entitled to exercise this power only if her right to separate maintenance was established according to the provisions of Mohammedan Law.
Tumleek
According to Mohammedan Jurists, means making another the malik or owner of a thing and includes ordinary cases of sale and gift and such other transactions belong to the group of acts under the category of "isbatat", "Isbatat" includes divorce, release and such other acts by which existing rights are brought to an end.
At any time after the happening of the contingency— Where a power is given to a wife by the marriage contract to divorce herself on her husband marrying again, then if her husband does marry again, she is not bound to exercise her option at the very first moment she heard the news. She has a continuing right to exercise the power.
The mere happening of the event under which the wife would be entitled to exercise the right does not ipso facto dissolve the marriage. She must actuality exercise the power.
Talak under compulsion or in jest
If the words of divorce used by the husband are "express" the divorce is valid even if it was pronounced under compulsion, or in a state of voluntary intoxication or to satisfy his father or some one else.
Provisions of Muslim Family Laws Ordinance mandatory in all forms of divorce
No particular mode is in fact prescribed for pronouncement effecting Talak. Divorce in the aforesaid cases of tumleek, compulsion or in. jest may even be effective without constitution of an Arbitration Council, but the observance of provisions of the Section 7(1) and (3) of the Muslim Family Laws Ordinance. 1961 is mandatory.
Incidents of Khula and Mubara'at forms of divorce
These are liberal provision of Shariat law in loosening the marriage tie on mutual arrangement. In Khula, the marriage is dissolved by an agreement between the parties for a consideration paid, or to be paid, by the wife to the husband, and the desire for separation should come from the wife. Where the desire for separation is mutual, it is described in that case as Mubaraat. Where the wife asked for divorce and the husband did not seek the severance of the marital tie, and by compromise the marriage was severed, it was held that this was a case of Khula and not Mubaraat. khula can be granted by court also. Seeking Khula at appellate stage is not permissible. Evidence otherwise, court is not competent to give decree for Khula.
Apostasy from Islam and Dissolution of a. Muslim Marriage
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(1) |
Under Section 4 of the Dissolution of Muslim Marriages Act, 1939, however, mere renunciation of Islam by a married woman or her conversion to any other religion cannot by itself operate to dissolve her marriage, but she may sue for dissolution on any of the grounds mentioned in Section 2 of the Act. Where one embraces Islam, the other refuses to embrace Islam, the court should pronounce dissolution. |
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(2) |
Section 4 only applies to the case of apostasy from Islam of a married Muslim woman, and apostasy of the Muslim husband would still operate at a complete and immediate dissolution of the marriage. |
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(3) |
The provisions of Section 4, however, do not apply to a woman converted to Islam from some other faith, who re-embraces her former faith, the conversion will operate as a dissolution of the marriage. |
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(4) |
Apostasy from Islam of the husband operates as a complete and immediate dissolution
of the marriage.
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Apostasy and bigamy: A Muslim husband becomes a convert to Christianity. The wife then marries another man before the expiration of the period of iddat. Is she guilty of bigamy under Section 494 of the Pena Code? No, because apostasy operates as an immediate dissolution of marriage.
Agreement for future separation— The High Court of Bombay has held that an agreement between a Muslim husband and wife which provides for future separation in the event of disagreement between them is void as being against public policy.
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