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Nima Heydarian

Pakistan Divorce Law Explained

by Nima Heydarian on January 17, 2013

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Pakistan being a melting pot of Islamic factions alone (not to mention Christian minorities, Hindus and even Parsis) has a unique system of Law relating to dissolution of marriage or Divorce. So your (or your client’s divorce) will be governed by both personal law and statutes pertaining to different religious communities/factions. For example, if one of the parties is of Christian faith, the question of divorce per se, would be governed by the Divorce Act 1869, as amended by the Divorce (Amendment) Act 1975.

Also, as required by the law, under the Divorce Act 1869 both parties must be domiciled in Pakistan at the time a petition for divorce is presented and the petitioner must be resident here. Pertaining to which court will have a clear jurisdiction to entertain petitions for divorce, in this case it will be the High Court and also the District Court issuing decrees for dissolution under this Act .As per the requirement in section 7 of the Divorce Act, they are under a duty to shape their decisions as far as possible in line with the principles and rules being followed and practice for divorce and matrimonial causes in the UK courts (yes you must have guessed, like Australia and Canada we were also a former “Queen’s” Empire!).Also, due to the powers given under Family Courts (Amendment) Act 2002, family courts now have jurisdiction to try offences where one of spouses is a victim of a criminal offence by the other notwithstanding provisions of Code of Criminal Procedure!

The above-mentioned law should not be confused with how the courts are going to deal with the dissolution of a Muslim Marriage however! This is dealt mainly by the Dissolution of Muslim Marriages Act 1939.In one recent case under section 2 of this Act the Court was looking at a suit for dissolution of marriage on ground of khula. It was felt that since there was a failure of re-conciliation between parties during the pre-trial stage, the wife had a right to seek khula from husband through a court of law, as relations between them were strained to such an extent where they became irreconcilable position that she could no more live in peace an harmony with husband wife was granted khula in circumstances. It is an interesting case so you might want to look it up (citation: 2010. C. L. C. 58).

If you are currently contesting a divorce case or are involved in one of your own, please remember that allegations of non-payment of maintenance allowance or cruel behaviour and bad character of husband need to be proved at a later stage as the sole statement of an aggrieved wife has not been held sufficient to prove her case on such allegations. (You might want to look up this case: 2000 Y L R 956 for further reference).

Muhammad Saleh (Advocate High Court at Legal Oracles)

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