Provision of Notice for Divorce/Talaq after Pronouncement in Pakistan: An Analysis along-with Recommendations for Reform in Section 7 of the Muslim Family Law Ordinance, 1961.

 
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Byline: Usman Quddus, Muhammad Arif Khan, Wasim Alam, Khurram Naeem Mir and Muhammad Haider Khan

Introduction

Section 7 of the Muslim Family Law Ordinance, 1961 requires serious reforms being an anomaly in being contrary to the demands of Islamic Law. Section 7 of muslim family law on talaq requires a new formation so that it conforms to the cross section of Muslims belonging to different schools of interpretation. This article will be a value addition for the law makers as it proposes a new legislation on the issue. The objective of the study is to reform section 7 of Muslim Family Law Ordinance, 1961 so that anomaly being faced by the superior courts of Pakistan in interpreting the provisions on talaq is resolved and a new legislation consistent with sharia can be proposed. The limitation of the study is a comparative analysis of the provision of talaq with various Islamic countries and focus has been made on proposing a home grown solution.

Case Law Analysis

Section seven of the Muslim Family Law Ordinance,1961 contains the substantive provisions on divorce/talaq in Pakistan and prescribes the procedure for it to be effective and binding. It states that soon after pronouncement of talaq in any form whatsoever, a notice in writing is to be sent to the wife and chairman arbitration council indicating the factum of divorce and thereafter chairman arbitration council shall within one month try to effect reconciliation between the spouses.1 Contravening the provisions of this section is a punishable offence,2 hence, the sending of notice after talaq is a mandatory provision which cannot be bypassed entailing penal consequences in case of default. The quagmire of Pakistani Courts in interpreting the provision of section 7 (1) of Muslim Family Law Ordinance, 1961 can be gleaned from the cases reported of the highest court of Pakistan delineating the scope for notice of talaq.

It was held as far back in 1963 soon after the promulgation of the controversial Muslim Family Law Ordinance, 1961 in the case of Syed Ali Nawaz Gardezi v Lt-Col. Muhammad Yusuf,3 wherein a government officer enticed a foreigner married woman that, 'if husband opts not to give notice perhaps he may be deemed to have revoked pronouncement of talaq.'4 This was a unanimous five member bench judgment authored by justice S A Rahman for the majority with stalwarts judges of the likes of Justice Cornelius, Kaikaus, Fazl e Akbar and Justice Hamoodur Rehman concurring. The predominant view after this judgment had been that divorce is yet to be effective if no notice is given. Reliance in this regard may be made to cases of Abdul Manan v Safurun Nessa 5 and Mst Kaneez Fatima v Wali Muhammad and onother.6 In the latter case of Kaneez Fatima, the judgment has been pronounced by five member bench.

In this case this was also held that failure to send notice of divorce leads to the conclusion that talaq is ineffective but not revoked.7 This means that the provision on notice of divorce has been relegated to the status of directory provision ignoring the fact that the language of statute was mandatory entailing penal consequences in...

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