Muslim Family Laws

Muslim Family Laws

Terms and conditions of the Muslim marriage contract:

Definitions:
Nikah - The Muslim contract of marriage;
Mahr - prescribed amount (cash/kind, immediate or deferred) given by either partner in consideration of the marriage;
Witness – two adult witnesses of good character;
Ijab/Qabul - formal marriage proposal and acceptance;
Talaq – divorce.
Khulla:- Divorce

Preamble to Contract:

The marriage agreement involves some obligations and rights toward each other sanctified by Allah and His messenger, Muhammad (peace and blessings be upon him). Fulfilling the terms of this contract is a religious obligation and duty rewarded in this world and hereafter. Violation of these agreed terms constitutes a sin.

Apart from a formal contractual obligation marriage is also a relationship between two human beings, that is ideally based on love, mercy and kindness. The partners are therefore expected to base their behaviour not just on legal rights and duties but on the spirit of goodwill, generosity, consideration and sympathy, taking into account each other's individual likes and dislikes. They are expected to conduct all family affairs through mutual consultation in the spirit of giving more than less (Q: 83 : 1-3).

All the rights and obligations expressed or implied hereunder are according to Shari‘ah derived from the Qur’an, Qiyas, Itjihad and Ijma‘ as agreed by prominent Muslim scholars. Since a marriage contract is a social contract entered into willingly, it recognises and upholds, social etiquettes and the law of the land. 

Importance of Nikahnama:

Nikahnama is very important for the rights protection of the women. But unfortunately the women are not aware about the importance of Nikahnama and that is why it is not filled accurately and fully. Its few column are filled and rest of are left blank. That is why the women have to face many probelem after the marraige. If this documents is prepared with care, fully and properly then the women can enjoy full their matrimonial right which have given by the law.

It is our big tragedy that the women are not aware about this documents and moreover it is prepared and filled by less educated nikah registar or other persons who either don't know about the importance of Nikahnma or deliberately neglect to complete the nikahnama fully.These are the rights of the women which law has given to them about the marriage, dower, husband second marraige, dowry articles, gift item, permission form arbitration council, terms and conditions of the marriage, monthly expenses and maintenance and as well about the delegated power of the divorce.

The nikahnama have 25 coloums in which 10 columns which are from 13 to 22 totally for the benefit, welfare of the women and for the protection of the women legal and matrimonial rights. But unfortunately these columns are hardly filled and care cut crossed during the nikah. It is very pity that due to ignorance and due to unaware about the law and the terms and conditions and rights of the nikah these columns are left blank. Resultly the majority of the cases comes in the court. The women have to approach to the court for their right. It is little ignorance if the women or their parents realize these importance things and fill the nikahnama completely and fully then after the marriage the women can enjoy full legal rights which they have ever.It is essential documents therefore, every women have to study and see this documents before the marriage and bound to the Nikah Registarar to compelete fill the Nikahnama with all rights. So that the women can enjoy all legal right which actually law want to give them.

Property mentioned in Nikahnama:

Nikahnama is a basic documents by which the marital relations are woven between spouses. Marriage in Islam is a civil contract. It is necessary that such a document would be the result of freewill and consent. A sui juris woman can contract marriage of her own free will and nikah performed under coercion by getting thumb impression of a woman in a deceitful manner is no nikah in the eyes of law.

Nikah of parties is in the form presceibed under Muslim Family Laws Ordinance 1961 and the rules framed thereunder and same is registrered with the Nikah Registrar in accordance with prescribed mode and thus Nikahnama has a different status than any other unregistered documents through which some immoveable property has purportedly been transferred. Nikahnama is a public document executed by Public Officer certified copy whereof is sufficient for proof of its contents unless its rebuttal is effected through cogent evidence. Dower deed by which immoveable property is purported to be transferred is thus , not considered to be compulsorily registerable under Registration Act, 1908 and wife is entitled to claim immoveable property on basis of Nikahnama wherein same is incorporated in lieu of dower. Any property prescribed in Form II stand transferred in the name of the bride and in such cases there in no need to execute a dower deed separately.

Enhancement of Dower Amount:

The dower amount can be enhanced at any time and at any stage after the marriage. For the enhancement of dower amount a new documents can be prepared at any time and it has not time limits. It is kind of agreement which can be executed any time after the marriage. The Hon’ble Superior court held that the enhancement can be made even orally. It is not necessary that it can be written.

The written document is more powerful then orally. If the husband deny about the enhancement of dower amount and if there is written document then it can be present as a proof. However if husband does not deny the increment of dower amount then it can be enhanced through the oral agreement.

However it better that the written document must be prepared for the enhancement of dower amount. Sometimes after the solemnization of the nikah and marriage the enhancement of dower amount is required then it is no matter it can be enhanced at any time and at any stage.

Permission of Wali for Marriage:

Marriage without the permission of wali by a girl who is sui juris is neither irregular nor invalid provided it is free from taint of fraud and misrepresentation and there is no legal bar or disability to the union of the parties. In Hedaya the principles of Hanfi Law is stated as follows:
“An adult female may engage on the contract without her guardian’s consent. A woman who is an adult and of sound mind maby be married by virtue of her own consent although the contract may bnot have been made or acceded to by her guardian”
Shafei school “the consent at marriage should b of the wife, the Wali only communicate the wish of the bride. The Wali’s power emanate from the authority of the woman. She may choose a remote relative as Wali in preference to a nearer one who is inimical to her interest.”

Court Marriage:

If the marriage of male and female is performed in the court with the permission of the court without the permission of wali/parents, this is called court marriage. Generally those couple comes in the court for the marriage whose parents don’t want their daughter to get marriage with that guy with whom their daughter loves him and want to marry at any cost. Therefore in the absence of the consent of parents of the couples especially the parents of the girl when forbade their girl to marry the specific guy than it happened. Sometimes when the girl contracted the marriage without the permission and consent of the parents, they lodge the false FIR for abduction of the girl and committing the zina against the newly husband of their daughter and his family for creating harassment and sometime get divorce forcibly. However on the statement of the girl the FIR is quashed accordingly.

The constitution of Pakistan, the law of land, Islam and Muslim Family Law allow to every adult person to get marry on his/her own choice, accord and freewill. The Superior Courts called that girl sui juirs and accepted their marriage without the consent of parents. And the Courts have accepted the minimum age 16 of the girl for marriage and hold that 16 years girl and above is capable to contract her marriage as per her own wish, freewill and consent.

For the purpose of Court marriage the girl have to appear in the court and have to give statement in the court before the Magistrate /Oath Commissioner / Justice of Peace etc. that she is going to marry with her own choice, freewill and accord, she is major, adult, and without no use of intoxicant she is deposing and no one has abducted, kidnapped. Thereafter the marriage is solemnized as per religious procedure. If the couples are Muslims then Nikahkhawan/Qazi solemnize the marriage in the presence of witnesses, if the couples are Christian then the father/padri solemnize the marriage if the couple are Hindu or any other community then the marriage is solemnized as per their religious way. After this the couples are allowed to go their homes and thereafter the said marriage certificate /Nikahnama is registered in the concern authority and return to the couple.

Effect of Non Registration of Marriage:

Under Muslim Law nikah can be performed orally and such a nikah is not invalid merely because it is not registered according to provision of the Muslim Family laws Ordinance 1961. A marriage which has not been registered under section 5 or which has been contracted in contravention of the provisions of section 6 would not be invalid and the relationship of husband and wife created by it would subsist though the husband would be liable to penal action for contravening the provisions of the Ordinance. It follows that non registration of marriage in itself would not invalidate the same, it factum of marriage was otherwise proved to have taken place in accordance with requirements of Islamic law. where however factum of marriage was in seiouls doubt between the parties non-registration might vause some doubt on its existence and solemnisation. On the other hadn where a marriage is not registered the mere allegation of marriage in the absence of very strong proof would not be sufficent for holding that the marriage had been duly solemnized.
Mutual Rights and Obligations:
Marriage is a union for life having mutually inclusive benefits and fulfilment for the contracting parties including the following:

1. Preservation of chastity and security of gaze.
2. Companionship inside and outside home.
3. Emotional and sexual gratification.
4. Procreation and raising of any children by mutual agreement and consultation.
5. Agreement to live together in a mutually agreed country and establish their matrimonial home therein.
6. Working collectively towards the socio-economic welfare and stability of the family.
7. Maintaining their individual property rights but contributing to the welfare of the family according to their capacity.
8. Maintaining social contacts with family and friends mutually beneficial for the family.
9. Managing their individual activities/roles inside and outside the home by mutual consultation.

Special Conditions:

1. Both parties reserve the right to amend/alter the contract through mutual written agreement.
2. Both parties undertake to stay loyal to each other and never to engage in extra-marital affairs with the opposite or same sex.
3. Either partner is not to enter into formal or informal marriage contract in the UK or abroad with another person, as it is unlawful under the laws of England and Wales as well as the Scottish legal system if the parties are living in the jurisdiction of UK and Ireland.
4. Under Muslim Family law /Pakistani law male can contract second marriage with the permission of the first wife and permission of the arbitration council.
5. The power of divorce (talaq) is available to both partners equally.
6. Details of any additional special conditions mutually agreed upon by:

Arbitration and adjudication:

1. All differences between the wives pertaining to this contract, its interpretation and implementation should be amicably resolved between themselves.
2. However, failing satisfactory resolution of differences, both parties undertake to settle their differences through family consultation and/or professionals.
3. If not mutually resolved, in matters of child(ren), custody and property possession / division the decision of a British courts will be acceptable to both parties if the parties are in UK and Ireland.
4. If the spouses are in Pakistan then the Family Courts have exclusively powers for the custody of the children, maintenance of wife and children and as well as divorce and khulla matters.

Restitution of Conjugal Rights:

Marriage confers important rights and entails corresponding obligations both on the husband and wife some of these rights are capable of being altered by the agreement freely entered into by the parties but in the main the obligations arising out of marriage are laid down by the law. An important obligation is consortium which not only means living together but implies a union of fortunes. A fundamental principal of matrimonial law is that one spouse is entitled to the society and comfort of the other. Thus where wife without lawful cause, refuses to live with her husband the husband is entitled to sue for restitution of conjugal rights and similar the wife has the right to demand the fulfillment by the husband of his marital duties. Either party to a marriage may sue the other restitution of Conjugal Rights. This right is given to both the parties.

The Muslim husband being dominant in matrimonial matter, the court leans in favor of the wife and requires strict proof of all allegations necessary for matrimonial relief. The Qur’an enjoins husbands to keep their wives with kindness or in kindness part from them. The husband can divorce a wife who is disinclined to live with him or marry a second wife, leaving his first wife alone and in peace.

The court may order the husband to be attentive to his wife and if he has more wives than one, to be just and equal between them. The husband unless he has contracted otherwise can always divorce his wife and thus get rid of most of his matrimonial liabilities. But he may not be willing to divorce that might render him liable for the mahr, a circumstance that may not be so release herself. The Sharayaul Islam indeed suggests a kind of arbitration where there is discord between them.
The right however is not absolute. The Holy Qur’an enjoins husband to retain wives with kindess or to part of with them with an equal consideration. Wherever a case of this nature arises it is to be born in mind that as the Muslim husband is dominant in matrimonial matters, the courts leans in favor of the wife and requires strict proof lf all allegations necessary for matrimonial relief. The law, however does recognize circumstances which would justify her in refusing to live with him.

Irregularity of the marriage is good defense to s suit for restitution of conjugal rights as it is necessary for a marriage to be valid according to Muslim law before the court can grant the decree of restitution of conjugal rights.

Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some fault on the part of the husband, there is no need of any restitution. If the husband is not in any way at fault there has to be restoration of property received by the wife and ordinarily it will be of the whole of the property but the judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit.

Ground for the Permission of Second Marriage:

Section 6 requires the Arbitration Council to decide a husband application for permission to contract another marriage during the subsistence of an existing marriage and record reasons for its “decision”.

The council has been advised under the rules to look to the following things in particular while considering the question.
1. Sterility,
2. Physical infirmity,
3. Physical fitness,
4. Unfitness for conjugal relations,
5. Will avoidance of a decree for restitution of conjugal rights,
6. Or insanity on the part of an existing wife.

But these or any other considerations are not binding on the Arbitration Council. They have to decide the matter according to their own reason and wisdom.

Jactitation of Marriage:

Jactitation of marriage.. the expression “Jactitation of marriage” us defined in the Wilson’s Anglo-Muhammandan Law as suit to have declared that the defendant is not the wife or the husband of the wife.in the Halsbury’s Laws of England (Third Edition) Volume 12 pages 225 paragarph 418 the form of suit of jactitation has been dealt with follows
“False boast of marriage. If anyone persistently and falsely alleges marriage with another the latter may obtain in the suit for jactitation of marriage a decree of perpetual silence. Only the person complaining that he has so been misrepresented can present such a petition.”

The word Jactitation according to the twentieth century dictionary means “bragging, public assertion esp. ostentatious and false” in Goldstone versus Goldstone it was helf that jactitation of marriage is an unwarrantable assertion that marriage exists and it has been within the jurisdiction of this court for many years to intervene to put to silence the person making a false declaration of marriage”

In Mir Asmat Ali verus Mahmmudul Nisa the object of the suit was given as follows: “There can be no doubt that unless a man is entitled by means of the civil courts to put to silence a woman who falsely claims to be his wwife the man and others may suffer considerable hardship and his heirs may be harassed by false claims after his death”

In Pakistan section 42 of the specific Relief Act enables a person to file suit for declaration of his legal character. It has been held that suits for negative declaration are also competent as section 42 is not exhaustive. A suit lies for a declaration that plaintiff is or is not the husband or wife of the defendant.

Polygamy , Repugnancy to Injunctions of Islam:

Provision of section 6 Muslim Family Laws Ordinance are derivable on a conjunctive reading of Ayaat 3 and 35 of Sura Nisa of Holy Qur’an. Status of polygamy in Islam is no more or no less than that of permissible act and has never been considered a command and therefore like any other matter lawful in principle, may become forbidden or restricted, if same involves unlawful things or leads to unlawful consequences, such as injustice. Misuse of the permission granted by Allah could be checked by adopting suitable measures to put an end to or at least minimize the instances of injustice being found abundantly in the prevent society, therefore it is explicitly of which is not violative of injunctions of Islam may be moved by the wife herself or her parents to determine whether a husband can have a second, third or fourth wife as the case may be. Arbitration Council in such circumstances would be needed to look into the disputes arising between husband and his existing wife/wives with respect to another marriage after taking into consideration the age, physical health, financial position and other attending factors come to a conclusion to settle their disputes. Arbitration Council should figure in when complaint is made by the existing wife or her parents/guardians. Arbitration Council is not empowered to make unlawful anything declared lawful by Islam nor could do vice versa. Intentions are to protect the rights of the existing wife/wives and interest of her / their children. Section 6 Muslim family Laws Ordinance, 1961 has not expressly declared the subsequent marriage illegal and has merely prescribed a procedure to be followed for the subsequent marriages and punishments for its non-observance, thus, sprit of the section is reformative only as in fact same has prescribed a corrective measure for prevention of injustice to the existing wife/wives. Subject to observations recorded to amend the provisions of section 6 and recommendation made by Federal Shariat Court, provision of section 6 Muslim Family Law Ordinance 1961 are not violative of the Injunction of Islam. 

Termination of Marriage contract:

1. Parties to this contract undertake to endeavour to do their best to uphold the terms of this contract
2. Neither party will end this contract unilaterally without recourse to arbitration/reconciliation by an independent individual or professional.
3. Male can pronounce divorce to wife and if the wife is given delegated powers of divorce then she also can pronounce divorce herself.
4. If delegated powers are not given to the wife the wife have to file suit of dissolution marriage before the family judge.

Pronouncement of Talaq:

A talaq may be in writing or by a word of mouth and no particular form is necessary. Marriage under Muslim law is a civil contract and not a sacrament. It is ordained by God in Holy Quran and it is for comfort love and compassion. It is the bounden duty of husband to keep his wife with love and affection respect and provide her maintenance during subsistence of marriage. Islam has laid down parameters for spouses to live with those bounds and if parties transgress those parameters they should relieve each other. i.e they may break matrimonial ties with kindness. Contract of marriage under Muslim Law can be dissolved inter alia by husband at his will without intervention of a court; by mutual consent of spouses; by judicial decree on a suit filed by any of the spouses. Divorce when proceeded from the side of husband it is called “Talaq” and when it is effected by mutual consent it is called “Mubarat”

Form of Talaq:

In Muslim family law ordinance no formality for execution of divorce deed or a notice of divorce is prescribed. Mere non-observance of any formality would not denude the deed of its genuineness. Where execution of divorce deed is proved by two marginal witnesses. The deed cannot be regarded as a mere fabrication. The pronouncement of talaq after the enactment of the ordinance could be in any form whatsoever. The intention of the law-makers it appears was that even if the talaq is in any particular form including biddat, it will have effect in accordance with the provisions contained in section 7. The special consequences of talaq-i-biddat would be removed and the talaq (simpliciter in question in this case would become effective on the expiry of 90 days after the receipt of the notice by the charirman unlcess revoked earlier. Under Muslim Personal law as well as Muslim Family Law Ordinance 1961 no mode is prescribed for pronouncement of divorce. It is establishment that Muslim can pronounce a divorce orally or make the divorce in writing. In fact under the Muslim Personal Law of divorce in writing became irrevocable as soon as the same was written byt the ordinance has made inroads into Muslim Personal law by providing a machinery and procedure for confirmation of the divorce and postponement of its effect for 90 days. In other words if talaq is otherwise valid.(i.e.if under the personal law of the parties the talaq is valid) ot would become effective under that law. But the only clog thereon is that effectiveness would be postponed for ninety days under sub section 3 of section 7 of the ordinance. Hanfi laws does not prescribe any particular form for the pronouncement of talaq. But the talaq must be pounced only during the period between two tuhrs (menstrual periods). Where talaq is pronounced on a wife who has passed the age for period menstruation the condition that oral declaration of divorce should be made between two period of tuhr would not be applicable because it would be physically impossible to have any such period between which such a declaration could be made.

 Divorce on Mutual Consent (Muba’arat):

When both husband and wife feel an aversion for each other and they dissolve their marriage by agreement. It is called Muba’arat. The offer of separation in mubaraat may proceed either from the wife or husband as soon as it is accepted the dissolution is complete. If the divorce is with mutual consent on the basis of Mubaraat, husband cannot retract or withdraw such divorce nor does chairman Arbitration Council have any authority to adjudicate upon validity of such divorce. Talaq become final for all intents and purposes and husband thereafter cannot withdraw the same; chairman is bound to register the same. Documents of pronouncement talaq are a mutual revocation of contract of marriage. Such talaq is irrevocable from the date of its execution and provision of section 7 would be inapplicable in such a case. This kind of talaq can take effect immediately without awaiting expiry of 90 days.

Revocation of the Divorce:

Talaq pronounced by husband to wife thrice would become “Bain” and husband would have no right of its revocation and to that extent provision of section 7 of Muslim Family Law Ordinance 1961 would give its way to those inunctions as enshrined in the Constitution. The proposition of law is equally applicable to Hanfi Muslim. The husband has no right of its revocation.
It is provided in verse No. 231 of Holy Qur’an that “The termination of marriage bond is a most serious matter for family and social life. And every lawful device is approved which can equitably bring back those who have lived together. Provided only there is mutual love and they can live on honorable terms with each other. If these conditions are fulfilled. It is not right of outsiders to prevent or hinder re-union. They may be swayed by property or other considerations.”

Verse No. 229 contemplates the third divorce and in that case it will be irrevocable. Verses Nos. 228-229 also provides for a reunion during the period of Iddat. Verse No.1 of Surat-al-Talaq, mandate that a divorcee is not to be turned out of the house during the period of iddat. This clearly contemplates scope for reconciliation. Proceedings of reconciliations are also provide in vese No. 35 of Surat-An-Nisa. Maulana Muhammad Ali has explained this verse as follows.

“The verse lays down the procedure to be adopted when a case for divore arises. It is not for the husband to put away his wife. It is the business of the Judge to decide the case. Nor should divorce cases be made too public. The Judge is required to appoint two arbiters one belonging to the wife family and the other to the husbands. These two arbiters will find out the facts but their objective must be to effect reconciliation between the parties. If all hopes of reconciliation fail, a divorce is allowed but the final decision for divorce rests with the judge who is legally entitled to pronounce a divorce. Cases were decided in accordance with the directions contained in this verse in the early days of Islam.”

Kinds of Divorce:

Marriage under muslin law is a civil contract and not sacrament. It is ordained by God in Holy Quran and it is for comfort love and companion. It is the bounden duty of husband to keep his wife with love and affection, respect and provide the maintenance during substance of marriage. Islam has laid down parameters for spouses to live within those bounds and if parties transgress those parameters they should relieve each other i.e. they may break matrimonial tie with kindness.

The word pronouncement of divorce in any form whatsoever, necessarily imply and presuppose pronouncement of divorce in any manner whatsoever permissible under Muslim law. The pronouncement of divorce must be conscious and independent act. The term pronouncement has not been defined in the Muslim Family Law Ordinance 1961. Therefore, the ordinary Muslim Law on pronouncement of divorce shall continue to apply notwithstanding the provision of Muslim family Law Ordinance.

Divorce is pronounced and executed under section 7 of Muslim Family Law Ordinance 1961. Under the Muslim Family Law there are three kind of divorce. (i) talaq-e-Ahsan (ii) talaq-e-Hassan and (iii) Talaq-e-biddat. The former is pronouncing once during a tuhr followed by abstinence from sexual intercourse from a period of iddat. The later is three pronouncements simultaneously divorce become irrevocable according to paragraph 312 of Muhammadan Law by Mulla after the period of iddat in case of divorce ahsan and on the completion of third pronouncement irrespective of the period of iddat in the later case. Since the divorce in the later case becomes irrevocable at once. It is known as talaq-e-bain.

Accordingly to Ameer Ali on Muhammadan Law volume II writing among the Hanfi’s are said to be two kinds viz. Marsumah (customary)and Ghair Marsumah (non customary). When repudiation is given by a wife of the description called customary, it is effective even when there is no real intention on the part of the husband to divorce the wife. But where the writing though Marsumah is written. So that it is not intelligible or it is written on something that cannot be deciphered. There will be no divorce even if he had an intention. In the case of non customary writings, if there be any ambiguity the divorce will not take effect). When there is no ambiguity and the meaning of the writer is manifest the repudiation is valid. The detail is discussed on page 233 of the digest of Muhammadan Law by Baillie.

Talaq Ahsan:

Talaq ahsan is effected when the husband pronounce one divorce during a tuhr in which cohabitation has not taken place between the parties and then abstains from cohabitation during her iddat. The talaq become irrevocable at the end of the period of iddat. But during the period the husband can take back his wife at any time. When the women are not subject to courses talaq can be pronounced even after cohabitation. The divorce becomes irrevocable only on the completion of iddat whish is three period and when the woman is not subject to periods it is three months. When the women is pregnant the iddat comes to an end on the delivery of the child or three months whichever is later.

Talaq-e-Bain:

The talaq-e-bain is way of divorce by husband is through three pronouncement made during a single “Tuhr” either in one sentence i.e. “ I divorce You” or in separate sentence. i.e. “ I divorce you, divorce you, divorce you,” or a single pronouncement made during a “Tuhr” clearly indicating an intention of irrevocable/complete on expiry of irrevocably. Talaw-e-Ahsan becomes irrevocable/complete on the third pronouncement irrespective of iddat period and talaq-e-bain become irrevocable immediately on its pronouncement irrespective of iddat.

Under Sunni Law where a husband reduces the talaq in writing and in clear words mentions the name of the lady whom he has divorced, it continues a valid divorce. A talaqnama in writing is a record of the fact of an oral talaq or it may be the deed by which the divorce is affected. It may be executed in the presence of Kazi, or of the wife’s father or of other witnesses. It must disclose a clear intentions that the marriage stands terminated but in case of the oral talaq communication is necessary for the purpose of dower maintenance or a women’r right to pledge her husband’s credit for means of subsistence. A talaq becomes irrevocable in Ahsan mode on the expiry of iddate. A talaq in the Hasn mode becomes irrevocable and complete on the third pronouncement irrespective of the iddat. Talaq ins the biddat mode becomes irrevocable immediately on its pronouncement irrespective of iddat. It is called talaq-e-bain

Dissolution of Marriage by Way of Khula:

Marriage is a civil contract between two opposite sexes for procreation of children and for social set up and any condition imposed on wife restraining her from excising her right of claiming divorce would be void ab initio. No restriction can be imposed on wife contrary to principle of Islam and Sunnah. The Holy Prophet (PBUH) had directed Muslim women to get divorce on basis of khula if she is not able to lead her marriage within the limited prescribed by Almighty Allah. Under Muslim law wife is entitled to khula as of right, if she satisfied conscious of the court that it will otherwise mean forcing hereinto hateful union. As there will be no use forcing a woman to live in hateful union of a person when she is not ready to live even for a single day at any cost. When the wife has a reasonable apprehension that her life is unsafe, she should not be compelled to live with her husband. Husband can divorce his wife without intercession of court while wife has to approach the court to obtain dissolution of marriage. Accordingly to single bench of Lahore High Court once wife approaches the court for dissolution of marriage on basis of khulla then court has no option but to accede to her request because she is entitled to divorce on basis of khula as ex debito justitiae (as of right). Right of seeking dissolution of marriage on ground of khula through court is a right equal to right of talaq except one difference that wife has to file a suit for dissolution of marriage whereas husband can pronounce talaq himself. Solitary statement of wife if convincing and satisfying conscious of the court that the spouses could not live amicably may be sufficient. Wife is the best person to depose treatment of her husband unhappy union should not be forced. Mere statement of wife that he had developed hatred for the husband is sufficient to entitle her to grant of khula. Hatred and aversion can neither be prescribed nor confined within the limited sphere and no mechanism has been evolved to express hatred or aversion precisely and in a definite manner.

It is necessary for the wife for seeking divorce on the ground of khula to use the word khula in the application. Lady stating that she had developed extreme hatred against her husband and their was no likelihood of reconciliation between the parties and that she would prefer death rather to remain within the marital union, suit of the wife will be considered as bringing out the pleas of khula. It is not necessary for the wife to use specific words of grant of decree of khla. Wife is not required to prove reasons and circumstances justifying her aversion and hatred towards husband.

Minor girl whose marriage is given by the father. On attaining age of 16 years and before 18 the girl exercising her right of option of puberty and divorce her marriage. The right of option of puberty is independent right and she can dissolve the marriage under the law.

Return of Benefit by Wife at the time of Khulla:

While dissolving marriage on the ground of khulla the court is bound to determine terms and conditions for khulla. Claim of maintenance however is not benefit received by wife from husband and there not returnable. Claim of maintenance however is not benefit received by wife from husband and therefore not returnable in case of khulla for it is duty of husband of maintenance his wife so long as she remains in wedlock. Where it is not shown that wife had received any benefit from husband during subsistence of marriage then wife would be entitled to get khulla unconditionally and the question of return of benefit to husband would not arise. Amount spent by husband or paid by him t his wife after marriage cannot be termed as benefit derived y her as consideration after her marriage.

In the absence of any demand made by the husband either in his pleadings or in evidence for returns of benefits family court is not bound to order the same. Dower paid or unpaid can never be in the nature of the benefit or gift liable to be restored in consideration of granting khulla divorce. In absence of any proof of receipt of benefit by wife from husband wife is entitled to grant of khulla without restoration of said un proof benefit.

Whose jurisdiction the Confirmation of Divorce is filed?

When divorce is pronounce by the husband or by the wife(in the case of delegated power of divorce) the notice is given to the Union Council / Arbitration Council for the confirmation of the divorce under section 7 (1) of Muslim Family Law Ordinance 1961. Under section 3 (B) of West Pakistan Rules under the Muslim Family Ordinance 1961 in the case of Notice of Talaq under section (1) of section 7 it shall be the Union Council of the Union Council or Town council where the wife in relation to whom talaq has been pronounced was residing at the time of the pronouncement of Talaq:

Provided that if at the time of pronouncement of talaq such wife was not residing in any part of West Pakistan, the Union Council that shall have jurisdiction shall be:-

(i) In case such wife was at any time residing with the person pronouncing the talaq in any part of west Pakistan, the Union Council of the Union or Town where such wife so last resided with such person ; and
(ii) In any other case, the Union Council of the Union or Town where the person pronouncing the talaq is permanently residing in west Pakistan

Where whereabouts of the wife who is to be supplied a copy of the notice of talaq under sub section A(1) of section 7 of the ordinance are not known to the husband and cannot with due diligence be ascertained by him he may with the permission of the Chairman serve the notice of talaq to the wife through her father, mother adult brother or adult sister or if their whereabouts are not known to the husband or cannot with due diligence be ascertained by him, he may with the permission of the chairman serve the notice of talaq on her by publication in a newspaper approved by the chairman having circulation n the locality where he has resided with the wife.

Dissolution of Muslim Marriage on ground of Cruelty:

Under clause (viii) of section 2 of Dissolution of Muslim Marriage Act 1939 a wife can seek dissolution of marriage on the basis of cruelty that is to say:-

1. If the husband assaults her or makes her life miserable by cruelty or conduct even if such conduct does not amount to physical ill-treatment or

2. Associate with woman of evil repute or leads an infamous life or

3. Attempts to force her to lead an immoral life or

4. Disposes of her property or prevents her exercising her right over it or

5. Obstructs her in the observance of her religious profession or practice or

6. If he has more wives then one does not treat her equitably in accordance with injunctions of Qur’an.
Cruelty can be either physical, mental or even by conduct and has to be proved as a matter of fact before the court. The court is required to discuss entire evidence produce by parties so as to reach to some just decision.

Appeal against Dissolution of Marriage:

Section 14(2)(a) of West Pakistan family Court Act 1964 and section 2(iii)(d) of Dissolution of Muslim Marriage Act 1939 that no appeal against decree for dissolution of marriage . Its object to deprive from filing of appeal against the decree regarding dissolution is to shorten the agony and to resolve the controversy expeditiously. Theme behind the proceedings or reconciliation proceedings before and after evidence and taking out of the right of appeal in case of dissolution of marriage by the Family Court is only to settle the matter regarding the marriage of the spouses as early as possible. No right of appeal is provided if marriage was dissolved by the family court however if marriage was dissolve under section 2(iii)(d) of the Dissolution of Muslim Marriage Act 1939 then right of appeal had been awarded before the District Judge. (Ref: 2013 CLC 1203)

Divorce on ground of Lia'n:

Lia'n mean imprecation. it is considered to imply a false charge of adultery brought by the husband against his wife. In such case the wife is entitle to sue for a divorce on the ground that her husband has falsely charged her with adultery. If the charge is proved to be false, she is entitled to a divorce but if not proved to be true. In the case of Lia'an the testimony which is required that the husband swears four times by God that he speaks the truth, As such if a man charges his wife with adultery he shall be called upon on the application of the wife, either to retract the charge or to confirm it by oath, coupled with an imprecation in these form.

"The curse of God be upon him, if he was a liar if he cast at her the charge of adultery"

The wife must then be called upon, either to admit the truth of the imputation or to deny it on oath coupled with an imprecation in these terms;
"The wrath of God be upon me, if he be a true speaker in the charge of adultery which he has cast upon me,:

if the wife takes oath the Qazi must believe her and pronounces a separation between the parties (Muhammadan Law by Mulla Para 333)

Lia'n proceedings are initiated only in cases where husband has no other evidence. once the wife refuses allegation of zina against Hadd in manner laid down in Qur'an she is completely absolved of guilt.

Imputation by the husband as to the fidelity of a chaste wife always give a woman the right to have a decree for divorce. The retraction of the imputation by the husband at any time cannot defeat the claim of the woman for a decree by divorce. This imputation as to chastity must be of free will not being influenced by any treat undue influence anger passion due to quarrel between the couple, loss of balance of mind etc. But however the wife can compromise the matter and may give up her claim to divorce. it is absolutely within the discretion of the woman.

Dissolution of Marriage using option of Puberty:

A marriage can be dissolve by woman without the aid of the court after attaining the age of puberty but before she attains the age of 18 years. It is not necessary for her to approach the court for exercise of such option, she can exercise the option otherwise. Clause (vii) of section 2 of Dissolution of Muslim Marriage Act 1939 adopts sixteen as the fixed age of puberty without an opportunity of rebuttal. This clause in fact it does deal with the option arising at puberty and the only way in which it can treasonably be interpreted is that a woman who has before the age of sixteen years been give away a marriage by her guardian is allowed to repudiate her marriage for a period of three years after she attains the age of sixteen and before she attains the age of eighteen.

A minor girl contracted in marriage retain the option of puberty upt to the age of 18 years or until she express her consent or disapprobation in express terms. In other words the right of annulment until she express terms. In other words the right of annulment of continues until she expressly ratifies the marriage say by express words or by cohabiting with the husband or by asking for her dower or maintenance.

Where a girl does not know of her marriage till she attains the age of eighteen the option of puberty may be exercise when she comes to know of the existence of her marriage and it is prolonged to such time when she comes to know that she has a right to repudiate it. She can repudiate it with a reasonable time thereafter.

How Option May be exercised?

The law does not describe any particular form or procedure for repudiation or marriage. It may be by oral words or even by conduct signifying rejection of marriage. The essence of the matter is the actual repudiation of marriage before attaining the age of 18 years by the woman. Till then the marriage remains inchoate, as it was liable to dissolution by unilateral repudiation by the woman. In other words the fact of the marriage hangs by the slender thread of unilateral option to be exercised the marriage stands dissolved. The withholding of consent may be expressed in a variety of ways. It may be indicated by the fact that without having recourse to institution of a suit for the dissolution of marriage the girl may, where there has been no consummation and provided also that she is not more than 18 years old gets remarried. It may be indicated by serving a notice on the husband through an attorney or publishing notice in the newspaper that the option of the puberty has been exercised. If the minor girl enters into a second marriage on attaining puberty, it would be sufficient of her having repudiated the earlier marriage and the subsequent marriage would be valid.By exercise of the option of puberty the marriage ceases to be a marriage and must be treated as having never taken place.

Divorce when spouses are Foreign Citizens:

Provision of Muslim family law ordinance 1961 are applicable only to Muslim citizen of Pakistan wherever they may be foreign citizen can invoke jurisdiction of civil court in terms of section 20 civil procedure code 1908 under which civil court enjoys plenary jurisdiction to entertain and try any suit if parties at the commencement of suit are residing within its local limits. Foreign citizen can also approach High Court for redress of their grievance under article 199 of the constitution. Mere fact that husband is citizen of foreign country would make no difference in respect o his right o pronounce divorce.

Divorce under Shia Law:

Requirement of valid talaq under Shia Law is that it should be pronounced in Arabic words in presence of two adult male witnesses and the wife. Under Shia Law a talaq is of no effect unlcess it is pronounced:

(i) Strictly in accordance with Sunnah
(ii) In Arabic terms
(iii) In the presence of atleast two adult male witnesses

A wakil, agent may balso be appointed for the purpose of pronouncing the Sighas in Arabic language. But the said rule does not appear to the inflexible. The husband can pronounce talaq in any other language known to him, as is done in the case of marriage, under the Shia Law. After all the physical and intellectual impediments may also provide an exception to the rule.

Re-marriage without intervening marriage:

The law previous to the enforcement of Muslim Family Law Ordinance 1961 made it obligatory of couples divorced by any mode of Talq other than talaq-i-Ahsan not to re-marry each other again unless the wife marries another man by a valid contract and he late dies or divorces her after actual consummation and she marries her first husband after the period of iddat. Before re-marriage the parties has to prove that the bar to their marriage is removed by an intermediate marriage consummation and dissolution otherwise their marriage is considered valid. In the case of divorce through khula it is not obligatory on the wife to re-marry a third person before entering into remarriage ite with her first husband. The remarriage with same husband o course would be subject to performance of another nikah. Section 7(6) also allows such reunion without “Halala” there is no restrain either in the Muslim family Laws ordinance or n the Injunction of Quran and Sunnah not to allow prayer to the husband for re-union with his wife when she is ready to lie against as wife of the husband within the limits of God.

It was held by the privy council that the children born of a remarriage where a legal bar to the marriage has not been removed were illegitimate. But as under the ordinance the mode of talaq is almost the same as that of talaq-i-ahsan statutory provision has been made that couples whose talaq has become effective in the mode prescribed by section 7 may re-marry without any intervening marriage. Except where they have been divorced thrice and the third divorce has become effective. In those cases they cannot remarry without an intervening marriage. 

Effect of conversion to another faith:

The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage:

Provided that after such renunciation, or conversion the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in section 2:

Provided further that the provisions of this section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.

When Husband whereabouts not known:

Notice to be served on heirs of the husband when the husband's whereabouts are not known.
In a suit to which clause (i) of section 2 applies :-
(a) the name and addresses of the persons who would have been the heirs of the husband under Muslim Law if he had died on the date of the filing of the plaint shall be stated in the plaint;
(b) notice of the suit shall be served on such persons ; and
(c) such persons shall have the right to be heard in the suit:
Provided that paternal uncle and brother of the husband, if any, shall be party even if he or they are not heirs.

Legitimacy:

Legitimacy is determined by the date of conception, not the date of birth. A child born during a marriage of its parents will be illegitimate if its begetting was prior to that marriage and also punishable by the Muhammadan Law of Crimes. English Law on other hand regards the date of birth as more important and determines legitimacy by the existence of lawful wedlock rather than by the absence of criminal intent. A child will be legitimate if it was born in lawful wedlock even though the parents were only married an hour before, it will equally be legitimate, no matter which begotten, if born within a period after the termination of the marriage. Each system has certain presumptions of evidence, more or less artificial and varying in the weight which attaches to them. The question has been discussed as to how far the English Law (as embodied in section 112 and 114 of the Evidence Act and in the entactments which in East Africa and elsewhere have been based thereon) supersedes Muhammadan Law. That it supersedes the Muhammadan Law of Evidence there is no doubt, but it has reasonably been argued that section 1 of Evidence Act itself solves the substantive law.

Difference between Muhammadan and English Law of Legitimacy:

(i) A child born during the first six hijri months (29 days each) of the marriage is illegitimate by Muhammadan Law, unless the father acknowledges it. It is legitimate by the English Law, unless the parents had no access to one to one another at any time at which it could have been begotten. Here the only real issue between the two systems is whether a husband must be saddled with paternity which he does not admit. Whether English or Muslim Law is to decide this question has never been judicially settled. But the Poulett Perage case brings the English nearer to the Muslim rule than the view embodied in the Evidence Act.

(ii) A child born after six lunar months from the date of the marriage, is conclusively legitimate by system, subject to li’an in the one, or proof of non access in the other.

(iii) After 280 days the question is entirely one of evidence. Muhammadan Law, with less advanced knowledge of embryology, has established presumptions in favour of the child for period lasting according to different doctors from ten hijri months to four years. But all these presumptions depends the conditions:-
(a) That the woman has not menstruated during that time.
(b) That she has not acknowledged the termination of her iddat.
(c) That there is no conclusive proof that the child is offspring of some other father. The circumstance for the establishment of a presumption more extravagant than English Law allows are not likely to arise. English courts have admitted the legitimacy of the child born 330 days after the last possible access of the husband. Any man may acknowledge any human being male or female to be his child, and the latter will accordingly be his legitimate child for all purposes whatsoever. This is not a legitimating still less an adoption (though it may serve as a substitute for adoption) but a declaration of legitimacy. The child acknowledges can, if he wishes repudiate the relation on attaining majority.

Acknowledgment of Paternity:

Where the paternity of a child that is his legitimate descent from his father cannot be proved by establishing a marriage between his parents at the time of his conception or birth, the Muhammadan Law recognizes “acknowledgement” as a method whereby such marriage and legitimate descent can be established as a matter of substantive law for purposes of inheritance.

The Muhammadan Law of acknowledgement of parentage with its legitimating effect has no reference whatsoever to cases in which the illegitimacy of the child is proved and established either by reason of a lawful union between the parents of the child being impossible (as in case of an incestuous intercourse or an adulterous connection), or by reason of marriage necessary to render to child legitimate being disproved. The doctrine relates only to case, where either the fact of the marriage itself or the exact time occurrence with reference to the legitimacy of the acknowledged child is not proved in the sense of the law as distinguished from disproved. In other words the doctrine applies only to cases of uncertainty as to legitimacy and in such cases acknowledgement has its effect, but that effect always proceeds upon the assumption of the lawful union between the parents of the acknowledged child. In short the doctrine applies only to cases where either the fact or the exact time of the alleged marriage is a matter of uncertainty that is, neither proved nor disproved. Stated in another form the doctrine is limited to cases of uncertainty of legitimate descent, and proceeds entirely upon an resumption of legitimacy and the establishment of such legitimacy by the force of such acknowledgement.

Condition of Valid Acknowledgement:

In order to render acknowledgement valid and effective the following conditions must be fulfilled;-

(1) The acknowledgement must be not merely of sonship, but must be made in such a way that it shows that the acknowledgement to accept the other not only as his son, but as his legitimate son.

(2) The ages of the parties must be such as to admit of the acknowledger being the father of the person acknowledge.

(3) The person acknowledged must not be the offspring of zina, that is, adultery, incest or fornication as he would be if his mother could not possibly have been the lawful wife of the acknowledger at any time when he could have begotten, as where the mother was a that time the wife of another man or had been divorced by the acknowledger and the legal bar to remarriage had not been proved or was within prohibited degrees of the acknowledger. If the marriage is disproved the issue would be the issue of fornication.

(4) The person acknowledged must not be known to be the child of another man.

(5) The acknowledgement must not have been repudiated by the person acknowledged

Relinquishment of Dower:

The burden of proof for the payment of the dower is on the husband. He have to proof that he has paid or she has relinquished her right of dower. If Husband taking plea of relinquishment of dower by wife then heavy onus lies on him to prove execution of relinquishment deed in case its execution is denied by wife. As such, such transaction relates to financial liability. it is necessary that it should be attested by two witnesses as required under Art. 17 Qanun-e-Shahadat and also conforms to the requirement of Article 79 of the Qaunoon-e-Shahadat Order. Court may disbelieve witnesses of relinquishment of the dower claimed on the basis of affidavit.

However, the wife has full right to relinquish her right of dower in favour of husband. But she have to execute the Relinquishment Deed and have to registere before the Registrar. Otherwise the claim of the husband will not be entertained by the court.

Benefit of Marriage Received by wife:

If wife have received any benefit of the marriage from her husband then at the time of Khulla she have to return that things which may be movable or immovable property. And is such dispute arise or mentioned in the Nikahnama then court is the duty bound to frame an issue in order to ascertain whether the wife has received any benefit or marriage exercise. Injunction of Islam provides wife to seek dissolution of Marriage on the basis of khula and same is with husband's right to get back the benefits and parties are allowed to lead evidence. The court cannot come to conclusion to extent of benefit attained by wife where it has more or less been admitted that the wife has prerogative seek dissolution of marriage it must be seen bye th court the purpose for which the divorce is being sought.

The approach of the court is to be on judicious and judicial exercise of his power keeping in view the injunction of Islam. the whims and the aspiration of the wife to go astray and to have a recourse to lead undesirable and immoral life should not prevail over the conscious of court. the exercise of court is just and on coming on the view that if the spouses are unable to live in the limits of Almighty Allah then breach the matrimonial obligation by awarding khula.

while dissolution of marriage on the ground of khula the court is bound to determine terms and conditions for khula. whether dower has been paid to the wife or not and claim of maintenance however is not benefit received by wife from husband and therefore it is not returnable by the wife in the case of khula. The maintenance if the duty bound of the husband to maintain her during the substance of marriage. If amount is spent by husband or paid by him to his wife after marriage it can not be termed as benefit derived by her as consideration after her marriage. If any amount is received by the father of the wife it will also not called the benefit of wife gain from the husband.

Maintenance of Minor Child:

Father is legally and morally bound to maintain his child. one of the criteria for determining the quantum of maintenance is the income and status of the father but id does not mean that by taking total income of the father and divided it on some subjective and unknown principles, the court grant allowances on unfounded mathematical rule. court of law cannot act whimsically and in capricious manner but is supposed to find out from the evidence n record as what was he requirement of the minor for the purpose f his subsistence which meant the support of his life. Requirement included food, clothing, lodging, education, medical care and some amount for extra curricular activities of the minor etc. The family court cannot earmark a sum for his future security.

Father cannot be absolved of his liability to maintain minor daughter on excuse of his weak financial position, particularly when amount of maintenance fixed of maintenance to be paid by father to his children. The grant of maintenance of children is not ex-gratia grant but father is bound to maintain his children whether they live with mother or not. Until the child live and in the custody of the mother the father have to pay their maintenance without any excuse.

Maintenance of Breast Feeding:

Mother is entitled to maintenance for breast feeding the suckling baby for two years even after the period of iddat. However social status of the man and the level of his legitimate financial source which are imminent factor for determining of maintenance are not ignored.

It is duty of the father of pay the maintenance of his ex-wife/the mother of his child after the divorce. If there is minor suckling child then there is no limit of iddat period of maintenance. The father have to pay the maintenance of the minor child and as well as the maintenance of the mother of the child after the divorce.This is the two year time period.

Suit For Maintenance against Grand-Father:

In the absence of father, the grand father is equally responsible to look after his grand children and cater for their basic needs of necessity to make both ends meet. Grand-father a man of means and could easily maintain minor.

The grand-father is legally bound to maintain grand children who are also legal heir in property owned by him. law does not leave minor unprotected to be swayed in cruel circumstances. Therefore, the law give liability to the grand-father to look after and to pay the maintenance of the minor grand children. This is only happened if the father of the minor dies and expire then the grand father is legally bound to maintain his grand children. If the child live with the mother and father dies then grand father have to pay the maintenance of the grand children and if he fails to pay then a case against can be filed for the recovery of maintenance of his grand children and court allow these kind of maintenance.

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