Divorce is the end of a marriage before either of the spouses has died. An annulment, on the other hand, declares a marriage to be void, even though the effects of marriage may still be recognized in such unions, including spousal or alimony support, child custody, child support, and property distribution.
As legal action is necessary to dissolve the prior legal act of marriage, some jurisdictions require a divorce to be certified by a court of law. In addition to determining the terms of the divorce, the court may take into account prenuptial or postnuptial agreements, or simply ratify private agreements between the spouses. However, in many cases, the spouses disagree about the terms of the divorce, leading to stressful and expensive litigation.
Recent developments have led to less adversarial approaches to divorce settlements, such as mediation and collaborative divorce, in which parties negotiate a mutually acceptable resolution to their conflicts. Depending on the country in which they reside, in some other countries, a divorce agreement can be certified by an administrative body that is not judicial in nature.
Law of Divorce/Talaq in Pakistan
The constitution was suspended again in 1999, following the military takeover. Discussions about possible Constitutional amendments continued during 2000.
Mohammedan Law allows you to dissolve a marriage contract in the following ways:
If a contract is made before or after marriage, the wife cannot divorce herself without his consent, but she can get a divorce by judicial decree in some cases.
There is a categorically stated requirement of talaq in 2004, cited as 2004 YLR 619, and 1993 CLC 219 (LHC), that the wife must be released from the marriage bond by a conscious and wilful talaq pronouncement. Therefore, a divorce cannot be considered effective in the absence of an intention to free the wife from marital bonds.
The wife should be informed of the talaq verbally or in writing.
An individual makes a divorce declaration during tuhr (the period between menstruations), then abstains from going to their spouse in order to establish a marital relationship until the period of iddat is over. Under Sec. 7 of the Muslim Family Law Ordinance 1961, Talaq-e-Ahsan is the mode of talaq that is recognized under this law. However, after the expiration of that period, the talaq becomes irrevocable and effective.
It consists of three pronouncements by the husband during consecutive three tuhrs without any physical relationship with the wife during any of the three tuhrs. Talaq in this form can be revoked after the first and second pronouncements but becomes irrevocable after the third pronouncement.
The declaration is made during a tuhr when three pronouncements are made or when one pronouncement is made clearly indicating an irrevocable intention to dissolve the marriage.
In this type of divorce, the husband grants his wife the right to formally grant a divorce to herself. The divorce is made in the same way as if the husband had granted it.
A mutual divorce is one in which both parties agree to divorce and release themselves from the marital ties.
There are three conditions that must be met for talaq/divorce to take effect according to the Muslim Family Laws Ordinance, 1961:
Notice: The divorce petition is to be submitted to the Chairman of the Union Council of the Union or Town in which the wife in relation to whom the divorce was pronounced resides at the time of the entry of the divorce judgment. Nevertheless, if the wife is not resident in Pakistan at the time of the divorce pronouncement, then the Union Council of the town or council where she last resided with such a person will have jurisdiction. In any other case, the Union Council of the town or council where the person who pronounces the divorce has a permanent residence in Pakistan will have jurisdiction.
According to notification No. S.R.O. 1086(K)/61 dated 8-11-1961 and different precedents of superior courts, a divorce proceeding in Pakistan cannot be entertained or pursued by the Union Council where both parties are permanent residents of foreign countries. A Pakistan Mission abroad officer was appointed to serve as Chairman Arbitration Council under Muslim Family Laws Ordinance, 1961.
The divorce proceedings, however, can be validly initiated in Pakistan if one of the spouses is living there at the time the divorce is declared.
Generally, when it comes to divorce, people wonder whether the writing of three divorces will be treated as a single divorce or as irrevocable triple divorces?
Taking into account the Holy Quran, Sunnah, and legislation of different Islamic countries, we reproduce the concept and principles of Talaq-e-Biddat below:
The word talaq derives from Arabic and means ‘freeing or undoing the knot.’ In Islamic terminology, it refers to divorce. In the Quran, divorce is mentioned very explicitly. It emphasizes safeguarding the marriage rather than abruptly dissolving it.
When you fear that there may be a breach between the two, appoint a mediator from each group. If both want harmony, Allah will have the power to make it happen (4:35).
The Holy Quran states that triple talaq can result in triple divorce, so where does the opportunity for arbitration stand?
A couple planning to divorce their wife must wait four months; if they have a change of heart and reconcile, then God is merciful and forgiving. If they decide to proceed with the divorce, then God is aware and knows. (2:226-227)
A divorced woman must wait for three menstrual cycles… if her husband wants a reconciliation, he is fully entitled to take her back as his wife during this waiting period. (2:228)
A further decree is issued elsewhere:
There is the option of holding the wife back if the divorce is pronounced twice, or allowing her to separate in fairness. In the event of a third divorce by the husband, the wife shall no longer be lawful unless she marries another husband afterward… (2:229-230).
It is mandatory for a couple to be very patient and time-consuming when executing a divorce, knowing that they are bound to have disagreements.
The Prophet warned you to divorce women within their prescribed waiting periods and to count the waiting periods accurately when you divorce them. You must also keep in mind that Allah is your Lord, and he should be avoided. You don’t know: Allah may bring about a situation [of reconciliation] after this if you do not turn them out of their homes or if they leave them by themselves. You must either retain them [inwedlock] or part with them [in wedlock] in a fair manner when they have reached the end of their [waiting] periods, and call two just witnesses from among yourselves to bear testimony, and [O witnesses] bear witness equitably for Allah’s sake.
There isn’t a single verse in the Holy Qur’an that endorses the notion of triple talaq in one sitting.
A companion of the Prophet, Abdullah bin Abbas, claimed that when the Prophet lived, during the first caliph’s era Abu Bakr and during the early years of the second caliph Umar, triple talaq was considered as just one talaq in one sitting.
Rukanah bin Yazid, a companion of the Prophet, divorced his wife three times in one sitting. When he realized what he had done, he approached the Prophet, who asked him how he had divorced his wife. In response to the Prophet’s question, Yazid responded that he had pronounced talaq three times in a single sitting. The Prophet then told him that it was the equivalent of one divorce and that he could take his wife back if he so desired.
A few Sunni schools recognize ‘talaq-e-biddat’ as a form of divorce recognized only by a small number of Sunni schools. Scholars differed regarding the ruling on a husband who divorces his wife three times. Most prominently, the Hanafi sect of Sunni Muslims recognizes it as “a sinful form of divorce”.7; others believe that divorce occurs only once in life.
In response to a question, Shaykh ‘Abd al-‘Azeez ibn Baaz (may Allah have mercy on him) answered: Is it permissible for a man to divorce his wife three times?
In essence, when a man divorces his wife three times with one word, and says, for instance, “You are thrice divorced”, Many scholars believe that the woman has been divorced three times and is forbidden from marrying her husband until she has been married to another man for two years. They only divorce or die after having intercourse with each other, not after a tahleel marriage (meaning, a marriage of convenience designed to allow her to remarry her former husband).
This conclusion was based on ‘Umar ibn al-Khattab’s (may Allah be pleased with him) counting such a divorce as three and judging people accordingly.
Some scholars believe this is an individual divorce, and there is no barrier to her returning to her husband if the ‘iddah has not yet ended. If the ‘iddah has ended, then she may marry him again. As evidence, they quoted the report narrated by Ibn ‘Abbaas (may Allaah be pleased with him) in Saheeh Muslim as follows: “A threefold divorce counted as one during the time of the Messenger of Allaah (peace and blessings of Allaah be upon him), Abu Bakr’s time (may Allaah be pleased with him) and ‘Umar’s first two years as a caliphate. As he said, “People are being hasty when it comes to matters that shouldn’t be rushed.” I suggest we count it as three and judge people on the basis of their actions.”
It is said in one report narrated by Muslims that Abu’l-Sahba’ said to Ibn ‘Abbaas (may Allah be pleased with them): “Are there not three counted as one during the time when the Messenger of Allaah (peace and blessings of Allaah be upon him) and during the time of Abu Bakr (may Allah be pleased with him) and during the first three years of the time of ‘Umar (may Allah be pleased with him)?” he replied: “Yes.”
The report that Imam Ahmad narrated in al-Musnad, accompanied by a jayyid isnaad originating from Ibn ‘Abbaas (may Allaah be pleased with him), said that Abu Rakaanah divorced his wife three times by saying “I divorce you thrice”, then regretted it, so the Prophet returned her to him with a single word, telling him, “This is only a single divorce”.
According to a saheeh report narrated from Ibn ‘Abbaas (may Allaah be pleased with him), he shared the view of the majority; according to the other report narrated from him, he held the same view. According to Ali, ‘Abd al-Rahmaan ibn ‘Awf, and al-Zubayr ibn al-‘Awwaam (may Allaah be pleased with them), they should be considered the same divorce.
Some of the Taabi’een, Muhammad ibn Ishaaq, the author of al-Seerah, and a number of earlier and later scholars also believed this. The view was also supported by Shaykh al-Islam Ibn Taymiyah and his student Ibn al-Qayyim (may Allah have mercy on them). Fataawa Islamiyyah, 3/281, 282. This is my view as well because it follows all of the texts and is more merciful and kind to Muslims.
In spite of this, you cannot take her back after the ‘iddah has ended; instead, a new marriage contract has to be made.
When it comes to taking back a wife after the ‘iddah is completed – or after three menstrual cycles – this is not valid, since once the ‘iddah has been completed, she becomes a stranger to her husband and is not permitted to be married except under a new contract. Islamiyyah Fataawa, 3/293
In addition, it is important to point out that Section 7 of the Muslim Family Law Ordinance, 1961, condemns and abolishes a disapproved form of talaq, referred to as Talaq-e-Ahsan. According to Section 7 of the Muslim Family Law Ordinance, 1961, if a couple has not been divorced three times or more, they may remarry without an intervening marriage. PLD 2003 Pesh. 169 (DB) is used in this respect.
(1) If a man wishes to divorce his wife, he must give the Chairman notice in writing, as soon as possible after talaq has been granted, and supply the wife with a copy of the notice.
(2) A person who contravenes this subparagraph shall be punished with simple imprisonment for a period of up to one year or with a fine of up to five thousand rupees, or both.
(3) A talaq shall not be effective until it has expired ninety days from the date it is delivered to the Chairman unless revoked earlier, expressly or otherwise.
(4) For the purpose of bringing about a reconciliation between the parties, the Chairman shall constitute an Arbitration Council within thirty days of receiving notice under sub-section (1), and the Arbitration Council shall take all steps necessary to accomplish such a reconciliation.
(5) The talaq is not effective while the wife is pregnant or until the period stated in subsection (3) or when the pregnancy ends, whichever comes later.
(6) For the purpose of this section, the word ‘second time’ means the third time that a husband and wife have been separated legally by talaq, in which case the wife is not prohibited from remarriage to the husband who disinherited her by talaq.
The judgment of Mr. Justice Syed Jamshed Ali in 2003 YLR 2623 categorically holds that three divorce judgments handed down in a sitting constitute one divorce. A discussion of the English translation of relevant verses from Surah-al-Baqarah, Surah-al-Nisa, and Surah-Al Talaq from the Holy Quran has been carried out by the Honourable judge in his aforesaid judgment. In the Muslim Law of Divorce by K.N., page 86, Chapter 4 discusses the report of Ibn’Abbas. It is stated in Ahmad (1984) that during the time of the Prophet (peace be upon him), as well as the first Caliph and during the first two or three years of the Second Caliph, the pronouncement of three divorces simultaneously was treated as one divorce. According to the Second Caliph, people pronounced divorce only once in order to discourage this undesirable practice, so he introduced the rule that the pronouncement of three divorces simultaneously shall be treated as three divorces or as a final divorce or Mughallazah divorce in order to discourage this undesirable practice.