2. Guardianship, Child Custody and Child Adoption
What is divorce?
Divorce is a legal procedure to dissolve the marriage. According to law, marriage is a civil contract, and as soon as the divorce is finalized, the parties to the agreement are no longer bound to perform that civil contract.
How can marriage be dissolved under Pakistani law?
Marriage can be dissolved in the following three ways under Pakistani law:
Talaq by the husband without the intervention of the court
Through mutual consent of the husband and wife, without the intervention of the court
Through a judicial decree obtained either by the husband or wife
Under what law can a husband seek a divorce?
Section 7 of the Muslim Family Law Ordinance, 1961.
What are the essential ingredients in a talaq?
Talaq or divorce has to be communicated to the wife, either verbally or in the form of a written document. Moreover, the intention to dissolve the marriage and release the spouse from their marital rights and obligations must be present. In the absence of these elements, the divorce shall not be considered or brought into effect.
Can a wife seek a divorce?
The wife cannot seek divorce unless she has been provided with the right to request a divorce in the marriage contract/ nikkah naama. Moreover, the wife can seek a judicial decree from the court to dissolve her marriage under certain circumstances.
Under what grounds can a wife seek judicial divorce/ khulla?
A wife can seek a judicial divorce/khulla under section 2 of the Dissolution of Muslim Marriages Act, 1939 under the following grounds:
Husband is impotent
Husband neglects or does not provide maintenance
Husband is nowhere to be found for the past four years
Husband has been imprisoned for at least seven years
Husband has been mentally unstable or insane for at least two years
The wife was a minor when she was married
He treats her with cruelty
He forces her to indulge in immoral acts
He leads an immoral life
He has taken an additional wife contrary to the provisions of the Muslim Family Law Ordinance, 1961
Husband has failed to perform his marital obligations for the past three years or more
Husband has incurable leprosy or a venereal infectious disease
He associates with women of evil repute
He has more than one wife and fails to treat them as per the injunctions of Islam
On any other ground provided under the laws of Islam
What other options does the wife have apart from seeking a divorce?
If the wife has not been provided with the right to divorce in the nikkah naama, then she has the option of taking khulla to dissolve her marriage.
What is the difference between divorce and khulla?
In general, the divorce is sought by the husband but, even if the wife seeks a divorce, she is entitled to keep the Haq Mahar provided to her by the husband. On the contrary, only the wife can seek khula, and while doing so, she has to return the Haq Mahar to the husband.
What is the procedure to obtain khulla under Pakistani law?
To obtain khula under Pakistani law, the wife has to apply for khula by filing a suit of dissolution of marriage in the family court. The court then summons notices to the husband. If he does not appear even after the court has followed the due process of law, then the court proceeds the case as ex-parte and passes a decree dissolving the marriage.If the husband / his representative appears, then the court continues with the trial and also tries to reconcile the parties. If the parties fail to reconcile, then the court passes the decree and the marriage is dissolved after the party obtains the certificate of dissolution of marriage.
How to obtain the abovementioned certificate of dissolution of marriage?
The party has to file an application to the Chairman of the Union Council of their jurisdiction.
Can an overseas Pakistani couple seek divorce online?
No, but if the marriage has been registered in Pakistan, then the couple by way of Special Power of Attorney can hire a lawyer to file a suit of dissolution of marriage and present in court on their behalf.
If a woman’s husband cannot be found, can she dissolve the marriage?
Yes, if the husband has been missing for 4 years of more then can get the marriage dissolved.
How can a Talaq take place?
Given below is a brief step by step procedure of how a talaq takes place:
1. Divorce is pronounced verbally or in written form
2. Notice is served to the Chairman of the concerned Union Council, and a copy of it is also served to the wife
3. Notices are served to both parties regarding the hearings
4. If any or both parties do not appear then more notices are issued, and finally, an ad is published in the newspaper
5. Divorce is finalized on failure to reconcile
6. Computerized certificate of divorce is issued to the parties, and an entry is made with NADRA
What are the different kinds of Talaq?
There are four kinds of Talaq which are as follows:
Talaq al Ahsan
Talaq e Hasan
Talaq e Biddat
Talaq e Mubarat
What is Talaq al Ahsan?
Under section 7 of the Muslim Family Law Ordinance, 1961 this kind of Talaq refers to when the husband pronounces single Talaq in a tuhr. A tuhr is the period that exists between menstruations. To finalize the Talaq, the husband has to abstain from indulging in sexual intercourse from the moment of the first pronouncement of Talaq until her period of iddah commences.
How can Talaq al Ahsan be revoked?
Talaq al Ahsan can be revoked by indulging in sexual intercourse with the wife before the period of her iddah commences.
What is Talaq e Hasan?
Talaq e Hasan requires three pronouncements of Talaq by the husband during three consecutive tuhrs without indulging in physical activities with the wife.
What is Talaq e Biddat?
Talaq e Biddat is when the husband makes three pronouncements of Talaq in one tuhr. This kind of Talaq is not preferred under Islamic law, and even the Pakistani law does not recognize it.
What is Talaq e Mubarat?
This is when both, the husband and wife agree to dissolve the marriage through mutual consent.
What is the validity of triple Talaq in one pronouncement?
It is invalid.
Can a couple remarry after divorce is finalized?
A couple can remarry after the divorce has been finalized, but, halala is a necessary condition.
What is halala?
Halala is when the divorced wife is married to another man after her iddah has ended, and she consummates that marriage.
What is the difference between halala and hulla?
Halala occurs naturally, such as the woman remarries without any ulterior motive, to another man, and if they get divorced, then it is considered as halala. On the other side, hulla is a practice which was extremely disliked by the Holy Prophet Muhammad (PBUH). It occurs when a divorced woman purposely remarries and consummates that marriage so, she can legally marry her previous husband.
Guardianship, Child Custody and Child Adoption
There is no legal mechanism or recognition of the term “child adoption”. You cannot adopt a child under the legal system of Pakistan per se. However, you can become the legal guardian of that child. The reason behind this is because, there is no concept of adoption under Islam, and no law in Pakistan shall contradict the injunctions of Islam as stated in the Constitution of Islamic Republic of Pakistan, 1973.
What is a guardian?
A guardian is any person who takes care of the minor and/ or his property.
When is a child brought under the guardianship of the country?
Children are brought under the guardianship of the country when the court of law terminates the guardianship or custody of the parents.
Which law governs the guardianship of a child?
Guardians and Wards Act, 1890.
Who can apply to be a guardian?
The following can apply to be a legal guardian:
Any person claiming to be a guardian
Any friend or relative of the minor
Any collector of the district having authority, or residing where the minor and/ or the property of the minor is located
What matters are considered by the court in appointing a guardian?
As per section 17 of the Guardians and Wards Act, 1890 the court looks into the following before appointing a legal guardian:
Age, gender, and religion of the minor
Nearest to the kin of the minor
Character and capacity of the potential guardian
Wishes of the deceased parents
Wishes of the child
Can a minor become a guardian?
No, a minor cannot become a legal guardian.
In what cases is a guardian removed?
A guardian is removed under the following circumstances:
he/ she has abused the trust and continues doing so
the guardian is incapable of performing his duties
he/ she neglects or mistreats the child
the guardian may have some adverse interest
the guardian has been declared as insolvent or bankrupt
Are custody and guardianship the same?
No, custody is not guardianship. Custody refers to having the possession of the minor.
Can orphanages and charitable organizations become legal guardians?
An orphanage and charitable organization cannot become legal guardians because they are not a person. However, their manager can become a legal guardian on behalf of the orphanage or charitable organization.
What are the duties of the legal guardian?
A legal guardian owes a fiduciary duty towards the minor. A fiduciary duty can be best described by the word “loyalty”.
Who is the natural guardian of a child?
Father is the natural guardian of a child, and then the mother. However, if the father appoints someone else as the guardian through a will, then the mother will not be next in line.
Can a mother appoint a guardian?
Yes, a mother can appoint a guardian if the father is incapable or has died.
What to do if you do not want to be a guardian anymore?
File an application to the court under section 40 of the Guardians and Wards Act, 1890 with a sufficient cause or reason.
Under what circumstances does a guardian’s power cease to exist?
The powers of a legal guardian cease to exist when:
the guardian is dead
the child does not require supervision
the child (legal term: ward) is no longer a minor
the court deems the guardian to be unfit
the ward is a female who has been married to a man who is fit to be her legal guardian
What happens when a guardian dies, but the ward is still a minor?
In such a case, the court will appoint another guardian.
Can the court appoint several guardians?
How does the court decide child custody?
The court puts the welfare of the child on top of everything. The custody of the child typically goes to the parent who can provide a better life to the child. This also includes providing an environment for a healthy mind and body of the child.
What weakens one's case while seeking custody of the child?
The following factors can weaken one’s case:
Remarriage within a short period of time
Any other factors which depict neglect or ill treatment towards the child
Is the preference of a child considered by the court?
Yes, if the child is old enough to make somewhat intelligent decisions.
What decision traditionally takes place in custody cases?
Typically, if the child is too young or a female, then the custody is granted to the mother. This decision is taken under the right of hizanat. This right absolves once the son is of 7 years old, and the daughter attains puberty.
Under what circumstances, will a father be chosen over the mother for having custody of young children?
A father will only be chosen over the mother for having custody of young children if the character and intentions of the mother are found ‘objectionable’.
Who gets the custody if both parents are absent?
If any of the parents is present, then the custody of the child always goes to the parent unless the parent falls under the abovementioned exceptions. However, in the absence of both parents, the custody is granted to the paternal grandparents, and then the maternal grandparents.
Information contained in the above FAQs is for general understanding purposes only and may have altered or have become incorrect owing to variation in factual aspects and evolving laws, therefore, should not be treated as an alternate to professional legal advice.