Thursday, 8 August 2013

Concept of Talaq (Divorce) in Pakistani Law





Majority of the population of Pakistan are Muslims. Among these Muslims the majority follow the Sunni Sect. Among the Sunni Muslims there are four schools of thoughts namely the Hanafi, Shafi, Maliki and Humbli. In Pakistani Law most of the laws are derived from Hanafi and Shafi Schools of thought.
There are two ways by which a man and a wife can end matrimonial relationship. The man has the right to divorce the wife. On the other hand the wife has the right to take Khula from Husband. There are three different ways by which talaq can be pronounced. That classifies talaq into further three types which are:-
1.     Talaq-e-Ahsan
2.     Talaq-e-Hasan
3.     Talaq-e-Bidat
Talaq-e-Ahsan means the best of talaq. In Talaq-e-Ahsan the husband pronounces single talaq to wife during a tuhr (time period between menstruations). On such pronouncement the Iddat period of wife starts which is three months according to Islamic Law.  The parties in this kind of talaq are at liberty to reconcile within 90 days. Sexual intercourse during this period ends talaq otherwise it becomes complete talaq on the expiry of Iddat period.

Talaq-e-Hasan consists of three talaqs which are given in three successive Tuhrs. No sexual intercourse takes place during this time period and eventually talaq happens after 90 days.
Talaq-e-Bidat is not liked by God. It means that the husband pronounces three talaqs in one single tuhr to the wife. The spouses have to end the relationship of marriage on such pronouncement once and for all. It means that there is no room for reconciliation left in this kind of talaq. Even if the husband pronounces three talaqs in anger or in an unserious mood, the relationship ends up.
All the above mentioned talaq types are unilateral. The wife has no option to revoke talaq on her own in all three cases. Similarly when talaq is by mutual consent of husband and wife then it’s known as Talaq-e-Mubaraat. In this kind of talaq the husband and wife both lose their right to revoke talaq. A wife is not prohibited to remarry same husband if she is in Iddat period after the pronouncement of talaq. However that option ends up once 90 days time period passes own from the pronouncement of talaq.
All the concepts of talaq are derived from Islamic Law which includes various sources of information. The top four sources of Islamic Law are Quran, Sunnah, Ijmah and Qiyas. The Imams of different schools of thoughts have difference of opinion regarding the family laws. However in Pakistani law mostly Hanafi point of view is followed. At some places we find Hambli and Shafi point of law enacted in the family laws as well.
As far as talaq proceedings for obtaining talaq certificate are concerned they are initiated under section 7 of the Muslim Family Law Ordinance, 1961. Practice is that majority of the people giving talaq don’t obtain talaq certificate. Commonly the husband gives talaq deed to the wife to end relationship and the spouses get married again on the bases of that.
A fact is that in Pakistan more than 75% people live below poverty line. They don’t have means for their survival and we cannot expect from them to follow the procedures mentioned in various enactments. There are many poor communities in Pakistan which do not go for registration of marriages and talaqs. When they have to get married they verbally get married and similarly they orally pronounce talaq to end up relationships. This practice happens even today in most areas of the country.