The Short And Legal Procedure Of Divorce In Pakistan

Power of procedure of divorce in Pakistan:

Temporary delegation of power of procedure of divorce in Pakistan was irrevocable, but a permanent delegation of procedure of divorce in Pakistan could be revoked. Such delegation of procedure of divorce in Pakistan option called 'Tafweez by husband to his wife would confer on her power of divorcing herself. Said Tafweez was of three kind’s viz., Ikhtiar, giving her authority to Talak herself; Amr-ba-Yed, leaving the matter in her own hand and Mashiat, giving her the option to do what she liked. All these factors when analyzed would resolve themselves into one, viz., leaving it in her or somebody else's option to do what she or he liked. Wife could not sue to enforce authority alleged to have been given to her, but she would sue after she had given effect to it to make husband liable for dower or to restrain him from seeking conjugal relations. Wife was entitled to exercise her right of Power to give divorce, Tafweez of Talaq and she was entitled to be separate from her husband.

 The laws pertaining to marriage, procedure of khula in Pakistan and dissolution of marriages of non- Muslim in Pakistan are being regulated by the following inter alia other enactment and Marriage Act, 1909 Christian Marriage Act, 1872. Parsi Marriages and Divorce Act, 1936.The Divorce Act, 1869.Generally the provisions of Muslim Courts Act may be applicable to non-Muslim also but the whole question is whether clause (a) of sub-section (2) which makes specific reference to Dissolution of Muslim Marriages Act is limited to community living in Pakistan. From the perusal of all the laws, at the subject it transpires that the forum in the Special Marriage Act is determined by Section 14 of Divorce Act, which is a forum different from the Family Court. The Parsi Marriages and Divorce Act, provides for the forum of a Special Court. Under the Native Converse Marriage Dissolution Act, 1866, the forum is either the High Court or a Civil Court.

Central statutes and a Provincial Act like the West Pakistan Family Courts:

These Acts are central statutes and a Provincial Act like the West Pakistan Family Courts Act cannot override them. The dissolution of Marriage under Acts () to (v) above enumerated is a subject not falling within the jurisdiction of the Family Court. Lady was Christian but she embraced Islam Former husband did not challenge their co-habitation in any forum. Lady was Christian by faith and had earlier married to a Christian but she embraced Islam and married a Muslim without getting formal procedure of divorce in Pakistan from her former Christian husband. After repudiating Christianity, Section 14 the lady embraced Islam, though there was nothing on record to show that she invited her Christian husband to accept Islam but it was established that it as in his knowledge that she had changed her faith and was living with a stranger i.e., Muslim husband. Since that former husband did not challenge their co-habitation in any forum, therefore presumption would be in favor of lady that she offered embracing of Islam to her former husband but he refused to accept the same, thus marriage of respondent lady with the Christian husband stood dissolved and no procedure of khula in Pakistan was required and therefore no Nadra divorce certificate in Pakistan was required. Muslim female married to a male claiming to have converted to Islam. Male subsequently proved to be foreigner and implanted in Pakistan for espionage. Effectiveness of Nadra divorce certificate in Pakistan was challenged. Husband administered the authority of Chairman to divorce and notified the same to Chairman Arbitration/Union Council whereupon certain proceedings were taken and ultimately a Nadra divorce certificate in Pakistan was issued.

 Right of divorce was issued through the impugned order:

Wife was well aware of the fact that husband had pronounced divorce to her for which consequential proceedings before the Arbitration/Union Council had also been taken. Father of the wife had been pursuing the matter before Arbitration Council. Case of the wife who had challenged Nadra divorce certificate in Pakistan was that the submission of divorce deed with a notice before the Arbitration Council could not, ipso facto, operate and result into the dissolution of marriage on the basis of khula procedure in Pakistan. In the present case it could not be disputed that the period much beyond 90 days had expired from the date of notice of the divorce when impugned certificate of its effectiveness was issued; in the circumstances, especially keeping in view all the relevant facts of service of notice on the Chairman Union Council, the initiation o the proceedings by the Arbitration Council, the repeated appearance of father of the wife who was holding a power on her behalf in those proceedings and actual knowledge of the Wife about the pendency and fact of proceedings, procedure of khula in Pakistan and its pronouncement had become effective. Failure to send a notice to the Chairman of the Arbitration council would not render the divorce in- effective in Islam. Effect of pronouncement of divorce in Islam would not justify interference with impugned order nor would warrant exercise of discretion in favor of the petitioner/wife under Article 199 of the Constitution.

Husband alleged that he had divorced the wife and one of the minors was not his son. Family Court decided the issue of divorce in favor of the husband and maintenance to the wife and the son was refused. Appellate Court reversed the findings of the Family Court qua procedure of divorce in Pakistan and found the wife and the son entitled to maintenance. Judgment and decree passed by the Appellate Court was upheld by the High Court in exercise of Constitutional jurisdiction. Only evidence produced by the husband to prove the factum of divorce was divorce deed and Nadra divorce certificate in Pakistan issued by Union Council. No independent evidence was produced on record that the husband in fact sent divorce to the wife, as the same was required under the Muslim Family Laws Ordinance, 1961, and thereafter gave intimation to the Union Council. Findings of the facts recorded by the Appellate Court and maintained by the High Court did not Suffer from any legal infirmity such as misreading or non- reading of any material piece of evidence. Supreme Court declined to interfere with the judgment passed by HighCOurt and leave to appeal was refused. Neither any witness in whose presence the alleged divorce pronounced nor any formal deed of Talaqnama produced mere entry in the petition-writers register who did not know parties personally would not prove divorce.  In order that a Talaq given by a Shia male to his wife be valid, it must be pronounced in the presence of the wife and two witnesses and that a written divorce deed would be invalid unless it be established that the husband was incapable of pronouncing the mentioned above procedure of divorce in Pakistan and getting Nadra divorce certificate in Pakistan issued.