This document provides an overview of family law in Pakistan. It lists the key enactments related to family law and discusses various processes for divorce under Islamic law as practiced in Pakistan. Talaq (divorce initiated by the husband) requires written notice to the local council. Judicial separation (khula) and dissolution (faskh) can be sought by the wife in family court. The document also discusses financial claims wives can make after divorce, child custody issues, and Pakistan's protocols with other countries like the UK on international child abduction cases.

1. FAMILY LAW
IN PAKISTAN
BY
HAKAM SHAH

2. List of Enactments
 The Muslim Family Laws Ordinance, 1961
 Dissolution of Muslim Marriage Act, 1939
 Divorce Act, 1869
 Guardian and Wards Act, 1890
 High Court Rules [Volume II] Guardian and Wards
 Maintenance Order Enforcement Act, 1921
 Family Courts Act, 1964
 Family Court Rules, 1965
 Foreign Marriage Act, 1903
 Christians Marriage Act 1972
 Child Marriage Restraint Act 1929

3. The Jurisdiction for
Divorce in Pakistan
(including for
expatriates)

4. Jurisdiction of Family Courts
Under Family Courts Act 1964
 In short, family courts have exclusive jurisdiction in following
matters:-
(a) Dissolution of marriage including Khula
(b) Dower
(c) Maintenance
(d) Restitution of conjugal rights
(e) Custody of children and the visitation rights of parents
(f) Jactitation of marriage
(g) Dowry
(h) Personal property and belongings of wife
(i) Guardianship
(j) Offences specified in Part II of the Schedule, where one of
the spouses is victim of an offence committed by the other

5. Territorial Jurisdiction
 The court in whose local limits cause
of action arose either wholly or in
part or where the parties reside or
last resided together has the
jurisdiction to hear the suit.
 However, in cases of dissolution of
marriage and dower the court within
the local limits of which the wife
ordinarily resides has the
jurisdiction.

6. Is Divorce a Court
Based Process, or are
there Administrative
Alternatives?

7. Talaq
 For Talaq to be effectuated, we shall look at s. 7(1) of the Muslim
Family Law Ordinance (MFLO) 1961. According to this, once the
husband has pronounced Talaq, in whatsoever form he has chosen,
he shall submit a written notice with the Chairman of the Union
Council.
 The Chairman shall thereon, within 30 days of receipt of the written
notice, constitute an Arbitration Council, which shall commence
reconciliation between the parties.
 The parties will have a period of 90 days, known as Iddat,
commencing from date the Chairman receives the Talaq notice,
before the divorce becomes effective.
 If the wife is pregnant, the iddat period would continue till the end
of the pregnancy, and the Talaq would only become effective after
that. Once the iddat period has lapsed, the Chairman shall issue a
Talaq certificate to both parties, which shall be effective in letter
and spirit.

8.  Although notice of the talaq to the Chairman is mandatory,
there is still some ambiguity regarding the validity of a divorce
without any such notice.
 The Supreme Court of Pakistan decided in Ali Nawaz Gardezi v
Muhammad Yusuf (1963) that the notice to the chairman was
mandatory and a divorce, however pronounced, would be
without effect if the required notice was not given.
 However, the Federal Shariat Court held, in the case of Allah
Rakha v The Federation of Pakistan 2000, inter alia questioned
the mandatory notice requirement to the Chairman of the
Arbitration Council, holding that it should not be punishable
since no notice is required under the stipulations of the Holy
Quran. Thereon, the FSC conclusively held that the period of
iddat commences from the date of pronouncemt of Talaq by the
husband and not from the date of delivery of notice to the
chairman. The matter is currently pending appeal in the
Shariat Bench of the Supreme Court.

9. Judicial Separation (Khula)
Judicial procedure
 To apply for a Khula or judicial divorce, the wife would need
to file a suit in the Family Court.
 She shall do so by merely raising the ground that she feels
she can no long live with her husband “within the limits
prescribed by Allah’. Such a statement in her suit, undertaken
on oath, would be sufficient to establish her case for a Khula.
 In khula divorce, the wife must forgo 50 % - 100 % of her right
to Haq Mehar i.e. dower. Claim to any other bridal gifts may
be appropriately decided by the court.
 If the wife fails to return the required items, the decree for
Khula does not become ineffective. The husband would
simply have to file a separate suit for the recovery of the
gifted items.

10. FASKH (Judicial Dissolution)
 The procedure adopted for judicial dissolution shall be the same as
provided for Khula through the court. However, in case of judicial
dissolution (faskh) the wife would have to base her dissolution of
marriage application on any one of the following grounds:
 Desertion by the husband for a period of four years;
 Failure to provide for maintenance for two years;
 Husband’s failure to perform his marital obligations;
 Husband’s imprisonment sentence for over a period of seven years;
 Husband’s continued impotency since the time of marriage;
 Husband taking another wife in contravention of established legal
procedures provided under the MFLO 1961;
 Husband's insanity or some other serious illness for a period of two
years;
 That the wife was a minor at the time of marriage;
 Husband’s cruelty, whether physical, mental, or any other form of
mistreatment;
 Any other ground that may considered valid for the dissolution of
marriage under Muslim Personal Law.

11. Talaq-i-Tafweez
 This is where the wife has been delegated the
right to divorce in the nikama/marriage
contract.
 There are no procedural impediments in this
type of divorce. The marriage can be dissolved
easily, without recourse to the courts. Adopting
the process for Talaq.
 This delegated the right of Divorce in her
nikahnama (clause 18), entitles the wife to the
same rights as those provided to the husband
under talaq.

12. Mubaraat
 There’s no need to approach the courts, which means
that the marriage are often dissolved quickly, cheaply
and with few procedural problems. during this case
both husband and married woman might sign a
Mutual Divorce Deed.
 Thereafter they must send a written notice under
section eight of the Muslim Family Law Ordinance to
the concerned union council. The Union council can
adopt a similar procedure as of normal notice of
talaq.

13. Summary of Financial
Claims a Wife can
make for herself on
Divorce

14. 1. In case of Divorce by husband:
a. Dower
b. Dowry Articles/Gifts
c. Maintenance (for Iddat)
2. In case of Khula:
a. Dower (50% or 75% depending the
nature).
b. Dowry Articles/Gifts
c. Maintenance (for Iddat)

15. Summary of
Financial Claims that
a Wife can make for
her Children on
Divorce

16.  A divorced mother who has custody of
the children can claim:
 Maintenance, interim as well as for life, for
her minors.
 The law in some cases recognizes a
distinction between sons and daughters i.e.
daughters may be awarded maintenance till
marriage or for life, whereas in the case of
sons it would be till attaining the age of
majority and/or financial independence.
 Obligation of the father to maintain his
adult son who had not yet completed his
basic education, enabling him to earn his
livelihood, might be considered by the
court(s) in an appropriate case.

17. Considerations for Maintenance
 Maintenance meant and included food, raiment and
lodging
 Such definition was neither conclusive nor exhaustive.
 It has a wider connotation and should be given an
extended meaning for the purposes of meeting and
catering for the present days’ social, physical, mental
growth, upbringing and well-being of the minor
 Keeping in mind the status of the family, the norms of
the society and his/her educational requirement
 It would obviously correspond to and be
commensurate with the means and the capacity of the
father to pay.

18. Muhammadan Law by D. F. Mullah
 "370. Maintenance of children and grandchildren.---(1) A
father is bound to maintain his sons until they have attained
the age of puberty. He is also bound to maintain his
daughters until they are married. But he is not bound to
maintain his adult sons unless they are disabled by infirmity
or disease. The fact that the children are in the custody of
their mother during their infancy (section 352) does not
relieve the father from the obligation of maintaining them.
But the father is not bound to maintain a child who is capable
of being maintained out of his or her own property.
 (2) If the father is poor, and in capable of earning by his own
labour, the mother, if she is in easy circumstances, is bound to
maintain her children as the father would be.
 (3) If the father is poor and infirm, and the mother also is
poor, the obligation to maintain the children lies on the
grandfather, provided he is in easy circumstances."

19. Child Custody
Post Divorce –
Brief Overview

20. a) A Family Court can entertain any suit relating to
custody of children according to Family Courts Act
1964 under Guardian and Wards Act.
b) In case of dispute the Court assumes guardianship
of the minor.
c) Welfare of the minor.
d) General rule is that the interest and welfare of the
minor child should be of paramount consideration.
e) Willingness of the major children.
f) Visitation rights.
g) Custody laws favour the mother, however,
visitation with the father is usually deemed to be in
the best interest of the Minor.

21. UK – Pakistan Protocol
 Signed Between: President of the Family Division and the Hon.
Chief Justice of Pakistan in consultation with senior members
of the family judiciary of the UK and Pakistan having met on
15th to 17th January 2003 in the Royal Courts of Justice in
London, signed said Protocol.
 Desiring to protect the children of the UK and Pakistan from
the harmful effects of wrongful removal or retention from one
country to the other.
 In normal circumstances the welfare of a child is best
determined by the courts of the country of the child's
habitual/ordinary residence.
 In case of wrongful removal, the judge of the court of the
country to which the child has been removed shall not
ordinarily exercise jurisdiction over the child, save in so far as it
is necessary for the court to order the return of the child to the
country of the child's habitual/ordinary residence.

22. UK-Pak Protocol (Cont..)
 Liaison Judges – judges of the Superior Courts of both countries
nominated to further the aims of the Protocol.
 Suplemental judicial Guidelines:
 Raising public awareness of protocol, maintaining awareness and
providing continuing education to judiciary and practitioners
involved in family-child cases.
 Securing access to justice to 'left behind' parents including
knowledge of their rights and the opportunity to assert them.
 To that end, instituting a system whereby the Judge in each Province
of Pakistan is tasked with over-seeing the formation of a Committee
to provide legal assistance to such parents.
 Recognition of the importance of mediation within the extended
family.
 Recognition of the importance of liaison between Pakistan and the
United Kingdom

23. Hague Convention
 Pakistan has become the 4th Muslim State in the world, and 1st South
Asian Country to become signatory to the Hague Convention on the
Civil Aspects of Child Abduction on 22nd December 2016.
 By exercising the powers conferred by Section subsection 3 of the
West Pakistan Family Courts Act 1964, the Act has been amended to
include Section 6A in Schedule: “Matters pertaining to Return of the
Child under Hague Convention on Civil Aspects of International Child
Abduction”
 Article 6 of the Convention provides for the designation of a central
authority to discharge Convention obligations. Pakistan’s Central
Authority has been designated within the Solicitor General’s
Office at the Ministry of Law, Justice and Human Rights.
 Where an incoming application is requested to the Solicitor General’s
Office accompanied by a Court order for return, the Central Authority will
pursue, verify and return the child accordingly.
 If a case is pending the Central Authority will provide legal assistance to
the applicant from a contracting state in order to return the child.

24. The Ability to Enforce
Foreign Family Orders
in Pakistan

25.  A creditor under a foreign judgment has three options:
 to seek direct execution under the relevant provisions of the
Civil Procedure Code, 1908 (CPC), where the country
rendering the judgment is designated by the Government
of Pakistan as a ‘reciprocating territory’ [declared as such
under S. 44A CPC]
 to file a suit in Pakistan on the basis of a foreign judgment,
treating it as a cause of action;
 to file a suit on the original cause of action.
 Under Section 14 of the CPC courts in Pakistan shall
upon the production of a certified copy of the foreign
judgment presume that it has been given by a court of
competent jurisdiction, unless the contrary appears form
the record. The onus of proving that the foreign court
was not a court of competent jurisdiction, will lie on the
party asserting the same.

26.  Enforcement proceedings can only be
challenged on specific grounds set out in the
CPC and these include:
 (i) where the judgment has not been pronounced
by a Court of competent jurisdiction
 (ii) where it has not been given on the merits of
the case
 (iii) where it appears on the face of the proceedings
to be founded on an incorrect view of international
law or refusal to recognize the law of Pakistan in
cases where such law is applicable
 (iv) where the proceedings in which the judgment
was obtained are opposed to natural justice
 (v) where it has been obtained by fraud; and
 (vi) where it sustains a claim founded on a breach
of any law in force in Pakistan.

27. Louise Anne Fairley vs. Sajjad Ahmed Rana
[PLD 2007 Lahore 293]
before Mian Saqib Nisar, J
 Petitioner – Citizen of UK
 Respondent – Dual nationality of UK and Pakistan, domiciled in Glasgow
 They had a minor daughter who was a British National
 While the matter of custody was still pending in the foreign Court, the father
removed the child from Glasgow.
 Mother of minor had sought custody of the minor by invoking habeas
corpus petition.
 Despite restraining order passed by a Court of foreign jurisdiction, father
removed the minor to Pakistan.
 Validity:
 Father having admitted himself in the jurisdiction of foreign Court was
debarred to bring the child to Pakistan
 If a Pakistani Court had passed an order directing not to remove a child from
the custody of a parent by the other and order was violated, such act would
fall within the ambit and scope of Art. 199 of the Constitution and S.491,
Cr.P.C.
 The same rule could be extended to the valid orders of foreign jurisdiction,
especially to which jurisdiction the defaulting party (father) had surrendered.

28. HAKAM SHAH
ADVOCATE