View for Talaq in Pakistani Community:
A written Talaq in Pakistan at
best is described as Talaq Bidat which is not recognized as valid by Shia Law.
According to Shia Doctors, the Talaq in Pakistan must be orally pronounced by
the husband, in the presence of two witnesses and the wife, in a set form of
Arabic words. A written divorce is not recognized, except in certain
circumstances. A divorce deed even if it is executed by the husband is not
effective in law to separate the two spouses, if violation of these provisions
of the Shia Fiqh. Pronouncement of written Talaq in
Pakistan not invalid for reason that no notice thereof served on the
Chairman. Provisions of S. 7 of Ordinance, 1961 would apply in case of talaq in
Pakistan.
What Qur’an says about Khula procedure:
Since declared repugnant to
Qur'an and Sunnah dissolution of marriage on basis of Khula procedure in
Pakistan is an independent right. Her failure to establish grounds other than
Khula procedure in Pakistan taken by her shall not prejudice her Khula right. Onus
of establishing hatred required to secure Khula procedure in Pakistan shall not
be made so strict as to compel wife to live in an unhappy union. Discord
between husband and wife involved in litigation wipes out any hope of
reconciliation entitling wife to dissolution of marriage on Khula ground. Khula
cannot be granted to wife just for asking. It cannot be equated with husbands,
right to dissolve marriage by pronouncing Talaq. Grant of Khula in Pakistan is
dependent upon satisfaction of Court that refusal to dissolve marriage would
amount to forcing parties to live in Pronouncement of written Talaq not
invalid. Wife's right of Khula in Pakistan is an independent right not by a
hateful union. Khula
procedure in Pakistan granted without recording reason for finding that
it was not possible for parties to live together as husband and wife, would be
open to reversal by High Court in writ jurisdiction.
Authority for Talaq Access:
Pronouncement of Talaq by husband
without notice to Chairman was not invalid. Pronouncement of Talaq by husband
without notice to chairman union council as required by Section 7 was not
invalid. Husband never revoked Talaq expressly or otherwise. Divorce is
determined and separation by mutual consent is also considered. Subsequent
conduct of husband sufficiently rebutting presumption that omission to give
notice to Chairman union council as required under S. 7, revokes Talaq
impliedly. Held, main object of S. 7 of prevent dissolution of marriage by
Talaq pronounced by husband bilaterally not defeated by non-giving of notice
under S.7 or 7(1) and did not render Talaq ineffective in circumstances. Second
marriage by divorce after expiry of period of iddat was valid and child out of
such wedlock legitimate.
Some Laws for Muslim about Divorce Procedure:
No mode is prescribed for
pronouncement of hasty divorce. Under the Muslim Personal Law, the Muslim
Family Laws Ordinance, 1961 no mode is prescribed for pronouncement of divorce.
It is established law that a Muslim can pronounce a divorce orally or make the
divorce in writing. In fact, under the Muslim Personal Law a divorce in writing
became irrevocable s soon as the same was written but the Ordinance has made
inroads into the Muslim Personal Law by providing a machinery and procedure for
postponement of its effect for 90 days. Provision of S. 7(6) treating
as"Talaq-e-Mughallaza'" Talaq pronounced by husband thrice in one sitting.
Stands in opposition to Hanafi view of Shariat. Application and enforcement of
S. 7(6) would be a conflict between law and conscience of people belonging to
Hanafi sect and entail insurmountable difficulties in society majority of which
consists of Hanafís.
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