Khula (separation) is provided to woman as against right of divorce vested in roan and ‘Trouble, if arises from the side of woman, the man is given power to divorce her and if injury is from the man’s side, the woman is given right to obtain Khula”, which she exercises subject to restoration of dower.
Where husband is residing abroad or even a foreign national he can divorce his wife in Pakistan provided that the marriage is registered in Pakistan by adopting following procedure, in case of husband:-
Where husband is residing abroad or even a foreign national he can get divorce in Pakistan provided that the marriage is registered in Pakistan by adopting following procedure, in case of husband:-
(i) Husband will send a power of attorney to his lawyer;
(ii) Power of attorney should be attested from the Pakistani Embassy or Consulate of the Country where he is residing;
(iii) Where a lawyer receives the power of attorney, he will proceed according to law;
(iv) Proceedings of overseas divorce in Pakistan are conducted in the Arbitration Council;
(v) Minimum 90 days’ proceedings will be conducted by a lawyer in the arbitration council;
(vi) After the proceedings of overseas divorce in Pakistan, a divorce certificate will be issued by NADRA through an arbitration council and this certificate is considered as sole and only proof of divorce.
Note: If husband and the wife are dual national or permanently residing abroad at the time of alleged divorce then SRO No.1086(K)61, dated: 09-11-1961, officers of Pakistan Mission abroad is authorized to perform the functions of Chairman under the Muslim Family Laws Ordinance, 1961. The Chairman, Reconciliation Committee or Arbitration Council, has no authority to exercise his power.
In our recent case, Spouses were residing outside Pakistan having dual nationality. It was the contention of the wife that she was not served with notice of divorce in the UK through the Pakistan Commission and the Chairman Union Council was not competent to issue a certificate of divorce. The Honorable Lahore High Court held that both the spouses were holding dual nationality and were residing in the UK at the time of execution of divorce deed. divorce deed was completed in the UK and the husband appointed his arbitrator through a special power-of-attorney sent from abroad. Secretary Union Council served notice to the wife through her father when she was residing in the UK at the same time. Wife was never served with any notice at her address in the UK. Husband had the remedy of approaching the Pakistan Mission in the UK for reconciliation or the effectiveness of divorce deed. Husband had submitted himself to the jurisdiction of the Family Division of the High Court of Justice, London, UK and said the court had assumed jurisdiction in the matter. Proceedings in family matters were to be instituted where the children or wife were ordinarily residing. Both the parties were permanent residents of the UK and the Arbitration Council in Pakistan had no jurisdiction to proceed in the matter. Proceedings initiated against the wife were in violation of law and rules and were based on mala fide of public functionaries. The divorce certificate was declared to be null, void and of no legal effect.
If husband pronounced a divorce to his wife or the wife obtained decree of Khula from the court of law or even if the marriage is dissolved by way of legal separation, you must have to comply with the procedure of reconciliation which shall be carried out before Chairman Arbitration Council or Reconciliation Committee and after the completion of the said process divorce certificate will be issued after passing of 90 days.
And if you are residing abroad and cannot join the proceedings of reconciliation then you may appoint your representative who will act on your behalf. Following documents are required in this process.
1. Divorce deed (in case of divorce pronounced by husband or legal separation).
2. Order of the family court if marriage is dissolved by way of Khula.
3. Copy of Nikah Nama.
4. Copy of CNIC and passport.
5. Special power of attorney.
Marriage among Muslims not a sacrament but a civil contract. Divorce Man and woman on equal footing in respect of rights of one against the other.
In Islam a marriage could be dissolved;
(i) By the husband at his will without the intervention of a court;
(ii) By mutual consent of the husband and wife, without the intervention of a court, and
(iii) By a judicial decree in the suit of the husband and wife,
If the husband has the right to divorce his wife, then the wife is also entitled to separation by means of khula.
Warning against free exercise of such rights by husband or wife placed on a moral rather than legal plane. It is well‑settled that the marriage among Muslims is not a sacrament but in the nature of a civil contract and such a contract undoubtedly has spiritual and moral overtones and undertones but legally, in essence, it remains a contract between the parties which can be the subject of dissolution for good cause.
In this respect, Islam conforms to the dictates of human nature and does not prescribe the binding together of a man and woman to what has been described as “holy dead‑lock”.
The husband is given the right to divorce his wife, though, of course, arbitrary divorces are discountenanced.
There is a saying of the Prophet Mohammed PBUH to the effect that “the most detestable of lawful things in Allah’s view is divorce” (Abou Daood).
Similarly, the wife is given the right to ask for khula in cases of extreme incompatibility though the warning is conveyed by hadith against too free exercise of this privilege, one of which says that women asking for khula will be deprived of the fragrance of paradise (Tirmizi).
The warning both to man and woman in this regard, is obviously placed on the moral rather than the legal plane and is not destructive of their legal rights.
The question arises that whether a wife, under the Muslim law, is entitled as of right, to claim khula, despite the unwillingness of the husband to release her from the matrimonial tie, if she satisfies the Court that there is no possibility of their living together consistently with their conjugal duties and obligations.
The foundation of the law relevant to khula is contained in the Qur’anic verses which may be translated as follows:
“Such divorce may be pronounced twice; then, either retain them in a becoming manner or send them away with kindness. And it is not lawful for you that you take anything of what you have given them, unless both fear that they cannot observe the limits prescribed by Allah. But, if you fear that they cannot observe the limits prescribed by Allah, then it shall be no sin for either of them in what she gives to get her freedom. These are the limits prescribed by Allah, so transgress them not; and who so transgresses the limits prescribed by Allah, it is they that are the wrong doers.”
The words “if you fear” are addressed to the community or those in authority from among you, including the Qazi, who represents the community, for adjudication of disputes. This is borne out from the commentary of the Qur’an by Qurtabi, known as VI “Al Ja’me‑al‑Ahkaam‑al‑Qur’an”.
The learned author says that this is the opinion of lbn‑e‑Abbas and Malik‑bin‑Anas as well as the majority of the legists.
By the phrase “Limits of Allah”, according to the majority of legists, reference is intended to the injunctions regarding the performance of conjugal obligations while living together.
Firstly, the words “if you fear” involve by necessary implication a reference to the Judge and adjudication by him. The occasion for a reference to him arises only where the husband refuses to release his wife when she demands a divorce for if the matter is mutually agreed upon between the parties, the husband will divorce her and there will be ho reference to the Judge; and no occasion for him to arrive at the conclusion that the parties will not keep within the limits of Allah.
In consequence, the verse is a rule of decision in cases where the husband refuses to release his wife and is not in express terms applicable to cases of khula by mutual agreement where there is no reference to the Judge.
In khula, under the verse, the husband is permitted to accept what the wife may give him to be free and this is an exception to the general rule stated in cases of divorce by the husband in verse 2:229 and verses 19 and 20 of Sura Al‑Nisa that it is not lawful for him to take back any part of what he has given to the wife but it is lawful “if the Qazi entertains the fear”.
Therefore, the verse contemplates an adjudication by the Qazi as justification for the husband’s accepting what his wife gives him for being free.
The provision of adjudication in the verse is evidence of Divine Wisdom, for it ensures on the one hand that there are not too many too frequent and unrestricted dissolution of marriages and on the other that the wife is not oppressed in order to deprive her of her property.
Secondly, it confers a right and a privilege on the wife to seek dissolution of marriage. Khula is thus a right conferred on the wife. In the prior verse 2:228 the Holy Qur’an itself mentions “women have rights against men similar to those that men have against them, according. to the well‑known rules of equity”.
It is explained that incurable aversion to the husband on the part of the wife would be sufficient justification for khula. Shah Wali Ullah in ” (Al‑Musawwa‑ min‑Hadith‑al‑Muatta, Vol. II, Page. 160) goes to the length of saying that “even if she obtains khula without any reason (apart from personal dislike) it is lawful but not approved. The reason is that the Prophet Mohammed PBUH and the Companions never inquired from her about the reason for her (seeking) khula.”
There are good reasons for the view that khula is separation and not talaq as the right of the husband to take back the wife, after khula does not exist, as it does in the case of talaq‑i‑raja’i and the period of ‘Iddat is different in the two cases.
The relevant Hadith are discussed by Shaukani in (Kitab‑ul‑Khul’, Vol. 111, p. 260) of his celebrated work (Nail‑al‑Autar) and he reaches the conclusion that khula is not a type of talaq, but is a category apart from it.
If this opinion is accepted, then it is clear that khula is not dependent on the will of the husband alone but even if khula be regarded as talaq as seems to be the view of some of the Hanafi Jurists, the question arises whether the wife is not entitled to demand a khula divorce from the husband, in the face of the latter’s opposition.
This problem finds no express treatment in the treatises of these Hanafi Jurists who content themselves by saying that divorce is the right of the husband.
It is true that in certain commentaries of the Qur’an the expression “person in whose hand is the tie of marriage” occurring in Verse No. 238 has been interpreted to mean the husband but this is by no means universally accepted.
Some commentators have interpreted these words as referring to the guardian of the woman and this interpretation seems to be more consistent with the context.
Pivotal question to be determined is as to what is the effect of decree of dissolution of marriage on basis of khula and whether parties could rejoin as husband and wife after pronouncement of Khula’ by court.
Khula is repudiated with consent at the instance of the wife in which she agrees to give consideration to the husband for release from marital bond and it has the effect of “talaq bayen” (single divorce).
Pronouncement of Khula’ by court would amount to single divorce and husband would be at liberty to marry the wife again after solemnization of nikah without intervention of a third person.
Section 7(6) of the Muslim Family Laws Ordinance, 1961 did not debar wife whose marriage had been terminated by divorce under S.7 of the said Ordinance from remarrying the same husband without intervening marriage with a third person.
The other difference between the right of divorce devolved upon the husband and the right of khula by the wife is that the husband can divorce his wife without intercession of court while the wife has to approach the court to obtain dissolution of marriage. Once the wife approaches the court for dissolution of marriage on the basis of khula then court has no option but to accede to her request because she is entitled to divorce on the basis of khula ex debito justitiae.
This difference arises owing to the fact that two situations are contemplated by the writers. One is where khula takes place as a result of the mutual consent of the spouses, which is technically called mubara’t or Legal Separation. In such a case it appears that no reference to the Qazi or court is necessary. But where the husband disputes the right of the wife to obtain separation by khula it is obvious that some third party has to decide the matter and consequently, the dispute will have to be adjudicated upon by the Court with or without assistance of the Hakams.
Any other interpretation of the Qur’anic verse regarding khula would deprive it of all efficacy as a charter granted to the wife.
It is significant that according to the Qur’an, she can “ransom herself” or “get her release” and it is plain that these words connote an independent right in her.
There are two classes of cases of khula:
(1) by mutual agreement, and
(2) by order of the Court
Dissolution of marriage takes place by the husband’s pronouncing a talaq in the first class (by mutual agreement) of cases, and by the order of the Court in the second.
Sanction for khula under the orders of the Qazi is to be found in the express words of verse 2:229 of the Holy Qur’an, which is the word of God.
Cases of khula by mutual agreement do not strictly fall under the terms of the verse itself, but what is so‑effected is also khula and justification for such cases has been found by the Jurists by a process of reasoning and deduction from the words of the verse, or from the contract between the parties.
The principle so‑deduced amply justifies the conclusion drawn by the Jurists that khula by mutual agreement is permitted in Islam but the concept of khula derived from instances of mutual agreement should not be used to confuse the issue and made to bear on cases of khula under the orders of the Judge which are expressly covered by the verse of the Holy Qur’an.
There is a difference between Khula and Separation and the main distinction between a Khula and Mubarat/Separation is that in the former the aversion is on the side of the wife and she desires a separation but in the latter the aversion is mutual and both sides desire separation.
Secondly, in a divorce by khula some consideration must be given by the wife to the husband for her release from the marital tie. It is in effect an offer from the wife for her release on payment of compensation.
When a suit was filed by the husband for restitution of conjugal rights had been decreed but as against that the wife’s suit claiming dissolution of marriage had been dismissed by the trial Court, it was held by the August Supreme Court of Pakistan that it was the wife who sought severance of the marital tie and not the husband and therefore in the circumstances the divorce ultimately agreed upon by the parties was only a Separation and not Khula.
Divorce affected by Khula or Separation operated as a release by the wife of her dower but it did not affect the liability of the husband to maintain the wife during her Iddat. Maintenance of a wife has always been considered not as a “benefit” but as a “right” of the wife and is not returnable in the case of khula, it is the duty of the husband to maintain his wife as long as she remained in wedlock. Even after divorce, till completion of Iddat, the wife is still entitled to claim maintenance and the fact that a suit for recovery of maintenance is filed during subsistence of marriage or afterwards is of no significance, if during the period for which maintenance is claimed marriage between the parties remained intact.
Claim of maintenance being not a benefit the wife had received from husband, is not returnable in case of khula as it is the duty of the husband to maintain his wife so long as she remained in wedlock. Wife is entitled in law to maintenance during pendency of suit and period of iddat and would not forfeit such right merely because she has sought divorce on basis of khula.
In case of dissolution of marriage on the ground of khula’, question of return of Haq Mehr (dower) received is to be adjudged in the light of conduct of husband which means that where evidence indicates that dissolution of marriage is caused by or is attributed to faulty conduct of husband then the husband would become disentitled to return of dower otherwise due.
Such a rule is based on a sound rationale as it would be unjust to deny dower to a wife who has been forced into seeking dissolution on account of reprehensible acts or omissions of her husband.
However, the court has the power to fix any amount of compensation being considered by Khula, if it is found after recording of evidence that Khula is not claimed merely on the desire of the wife but the fault of the husband is also the reason for her recourse to Khula.
Wife has to return consideration to the husband on seeking dissolution of marriage on the basis of khula and Holy Quran does not command in express words and clear terms that the entire consideration benefits/Haq Mehr received by the wife has to be repaid, therefore, in peculiar and exceptional circumstances, the court has the authority to determine that the Haq Mehr/consideration as a whole was not to be repaid by the wife but a part of it. Court would also determine as to what extent the husband would be relieved from the payment of dower, to the wife, if not already paid.
In other cases, consideration of Khula cannot be any consideration except the amount of dower.
Wife can not divorce herself from her husband without his consent except under a contract but she can in some cases, obtain a divorce by judicial decree.
Section 7 of Muslim Family Laws Ordinance, 1961 regulates the procedure as to pronouncement of Talaq.
Under Islamic Law a Muslim husband enjoys unfettered power to pronounce Talaq to his wife; it is also established principle of Islamic Jurisprudence that husband could delegate his power to his wife or to third person by way of contract.
It is not a Shari Right of a married woman to get divorce upon herself without specific delegation of such power by the husband. If the words mentioned in column No.18 of Nikahnama do not vest any power in the wife to exercise the right of Talaq-e-Tafweez then no power is to be considered as delegated by the husband to the wife to exercise right of Talaq-e-Tafweez upon her.
If such types of words are allowed to be considered as a right of Talaq-e-Tafweez then it would mean that whatever is incorporated against column No.18 would be presumed as a Talaq-e-Tafweez.
Power to give divorce to the wife is a vested right with the husband who may delegate the same to the wife or to a third person. Person to whom such power is delegated may then pronounce the divorce accordingly.
Such divorce is known as “Talaq-e-Tafweez”. Delegation of power called “Tafweez” by the husband to his wife, conferred on her the power to divorce herself. Tafweez is of three kinds; Ikhtiar; Amr-ba-yed and Mashiat. Wife can not sue to enforce the authority to have been given to her but she could sue after she has given effect to it to make the husband liable for her dower or to restrain from seeking conjugal relations.
Wife is entitled to exercise her right of Talaq-e-Tafweez and to be separated from her husband and the same can not be termed as Khula. Talaq, once pronounced, would be effective after expiry of 90 days.
Once a person pronounced divorce, the power so delegated became irrevocable and such would operate as Talaq of the wife by the husband and in such scenario dissolution of marriage can not be considered as divorce by khula
Where wife exercise the delegated right of divorce, S.8 of the Muslim Family Laws Ordinance, 1961 provided that provisions of S.7 of the Muslim Family Laws Ordinance, 1961 would apply mutatis mutandis. No formal mode for exercise of the right is prescribed. Notice in writing to the Chairman, Arbitration Council about the exercise of the right is the only requirement.
Wife has to duly make the pronouncement by executing the deed and transmitting the copies to the husband and the Chairman, Arbitration Council.
Territorial jurisdiction of Chairman:
P L D 2019 Lahore 285.
The introduction of modern devices including SMS through the internet is one of the means of communication which are validly accepted all over the world.
However, the witnesses in whose presence the information is conveyed or received are always important to prove a fact through its verification.
The procedure for pronouncing divorce has been prescribed by the legislature in the best of the wisdom in order to ensure the sanctity of the institution of marriage recognizing divorce as a last option.
The major concern is what is going to be the level of the society if divorces are allowed to take effect merely on the basis of SMS, particularly in a patriarchal society.
Undoubtedly, the prerequisite for pronouncing a divorce is
● Peace of mind,
● The purpose and objective of such an act should be made known to him.
● By the witnesses present at the spot.
However, the wording of the SMS must categorically mention the above said prerequisites.
Although under Article 73 of the Qanun-e-Shahadat Order, 1984 the modern devices are legally acceptable, yet in order to prove a fact, the required procedure has to be followed.