Talak under Muslim Family Law Ordinance

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Talak under Muslim Family Law Ordinance

Talak;

Section 7 of Muslim Family Law Ordinance provides that “any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.

(2) Whoever, contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term with may extend to one year, or with fine which may extend to five thousand rupees, or with both.

(3) Save as provided in sub-section (5) talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.

(4) Within thirty days of the receipt of notice under Sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a conciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effect until the period mentioned in Sub-section (3) or the pregnancy, whichever later, ends.

(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under his section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.

Object of Section:

Intention of Legislature in codifying section 7 of the Ordinance was to abolish Talak ul Biddat and legislate Islamic provisions regarding the two forms of Talak ul Sunnat i.e., Talak Ahsan and Talak Hasan as far as may be. Legislative machinery however, had not fully succeeded in doing so.

Notice to Chairman:

No particular form of notice is prescribed either by the Muslim Family Law Ordinance or in the rules framed there under. Object of notice is to communicate to wife and chairman of Local Council concerned, the fact that husband had dissolved the marriage so that proceedings for reconciliation could be undertaken.

Notice to wife:

It is obligatory on the husband to give a copy of the notice given to the chairman, to the wife and if he does not do so he will be liable to prosecution under sub section 2. But otherwise the notice has no effect on the validity of the talaq or the date on which the talaq has become so effective.

Presence of wife:

Presence of wife is not necessary for the divorce to be effective. Thus a talaq pronounced in her absence would be a valid divorce. The divorce may be addressed to the wife or to her any relations but the words should clearly refer to her.

Talak when become operative:

The pronouncement of talaq does not become operative as divorce. It is merely a manifestation of a wish to divorce. Talak would not become effective until and unless the period of ninety days had elapsed with effect from date of receipt of notice of talaq by the chairman of union council concerned, a copy whereof, had also been received by the wife. It follows that talaq unless revoked earlier expressly or otherwise becomes effective on the expiry of ninety days after notice is given to the chairman.

Pregnant women:

The divorce becomes irrevocable only on the completion of iddat which is three period, and when the women is not subject to period it is three months. When the women is pregnant, the iddat comes to an end on the delivery of child or three months, whichever is later.

Death of husband before divorce becomes effective:

Where wife established by evidence that she was married to K who divorced her. But K died before divorce became effective under the ordinance. It was held that she was widow of K and as entitled to inherit from him.

Revocation of Talaq:

The power of revocation, even after due service of notice is inherent and the revocation, as recognized in section 7 (3) of the Ordinance can either be express or implied. The husband was within his right, recognized by section 7 of the Muslim Family Law Ordinance, to revoke the divorce before the expiration of ninety days and thus to prevent it from becoming effective.

Arbitration Council:

The Arbitration Council is constituted for the purposes of section 7 by the chairman union council as its chairman and one representative each of both the parties. Arbitration council is empowered to bring about reconciliation between parties to a marriage in case of talaq and has no business of going into niceties of questions raised before it in respect of validity of marriage or validity of talaq etc.

Talaq-e-Tafweez

Power to give divorce vested with the husband who might delegate the same to the wife or to a third person. Person to whom such power was delegated might then pronounce the divorce accordingly. Such divorce was known as “Talaq-e-Tafweez”.

Remarriage:

Parties were husband and wife inter se and their marriage had been dissolved on the basis of Khula, Plea raised by parties was that suit for dissolution of marriage was filed on misunderstanding and both of them wanted to remarry without intervening  marriage (Hallala). It was held that approved mode of divorce, under Muslim Family Laws Ordinance, 1961, was by one “Talaq” and such mode was obligatory for husband to divorce by one mode of “Talaq” other than “Talaq-e-Ahsan”. Couple could remarry without any intervening marriage except where wife had been divorced thrice and third divorce had become effective and only in that case they could not remarry without “Hallala”. All divorces were revocable under S. 7(6) of Muslim Family Laws Ordinance, 1961. High Court allowed reunion of parties after revival of “Nikah” particularly when wife was willing to live again with her husband and to perform her matrimonial conjugal rights within the limits ordained by the Holy Quran and Sunnah.

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