wife Right of Divorce or Talaq Khula

Divorce procedure in Pakistan 

A wife can dissolve her marriage unilaterally only if the right of divorce has been unconditionally delegated to her by the husband in the marriage contract or the nikahnama. If such right of divorce is not delegated then in such circumstances wife can dissolve her marriage by apply for Khula from the Family Courts of Pakistan which is also known as dissolution of marriage by way of judicial divorce.

Therefore if the wife is not delegated the right of Divorce in her nikahnama then she would need to apply for Khula in Pakistan. Khula, which literally means ‘untying the knot is the dissolution of marriage initiated by the wife and is granted by the court. To apply for Khula the wife would need to file a suit for Khula in the Family Court under the West Pakistan Family Courts Ordinance, on the grounds that she feels she can no long live with her husband “within the limits prescribed by Allah’ and such a statement on oath made in her suit would be sufficient to establish her case for Khula.

 Dissolution of Muslim Marriages Act 1939
Judicial khula may also be granted without the husband’s consent if the wife is willing to forgo her financial rights.

Grounds for Judicial Divorce
Grounds on which a woman may seek khula include:
 Desertion by husband for four years,
 Failure to maintain for two years
 Husband contracting a polygamous marriage in contravention of
established legal procedures,
 Husband’s imprisonment for seven years,
 Husband’s failure to perform marital obligations for three years,
 Husband’s continued impotence from the time of the marriage
 Husband’s insanity for two years or his serious illness
 Wife’s exercise of her option of puberty if she was contracted into
marriage by any guardian before the age of 16 and repudiates the marriage before            the   age of 18 (as long as the marriage was not consummated),
 Husband’s cruelty (including physical or other mistreatment, unequal
treatment of co-wives),
 Any other ground recognized as valid for the dissolution of marriage under Muslim laws

The Family Court will issue decree and send notification to Union Council which proceeds as if it received the notice of Talaq and once the iddat period of over the khula becomes effective. At the time of filing of Khula suit the wife usually has to return haq mehr and other benefits received from husband as zar-ikhula, gifts received from husband’s family do not have to be returned court decides how much & what is to be returned on the facts of the case wife’s failure to pay zar-i-khula does not render khula ineffective; husband has to file separate suit for recovery of zar-i-khula.

Divorce by husband other then Shia Law.

Any man of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any cause. A Talaq / Divorce may be effected orally by spoken words in the presence of two witnesses or  by a written document called a Talaqnama / Divorce Deed in the presence of 2 witnesses.

Shia Law / Fiqha Jafria

A divorce must be pronounced orally in the presence of two competent witnesses and a talaq / divorce communicated in writing is not valid unless husband is incapable of pronouncing it orally. Presence of witnesses is a condition precedent of a valid talaq / divorce according to Fiqha Jafria. When both the spouses were governed by the Shia Law, divorce must be pronounced by the husband orally and in the presence of two competent witnesses. Divorce communicated in writing is not valid under Shia Law unless husband was incapable of pronouncing it orally.

According to Muslim Family Laws Ordinance, 1961, to give effect to talaq / divorce there are three requirements:

(i) Pronouncement in accordance with Muslim Law;

(ii) Service of Notice on Chairman; and

(iii) Service of copy of Notice on wife. If any one of such conditions is not satisfied, the Talaq / divorce would not be effected even after 90 days. The procedure is given below:

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