The Muslim Family Laws Ordinance 1961 plays a crucial role in regulating marriage and divorce among Muslim citizens in Pakistan. A recent judgment by the Islamabad High Court sheds light on several important aspects of this law, particularly concerning expatriate Pakistanis and the jurisdiction of Union Councils in divorce proceedings. Let’s break down the key takeaways from this judgment in simple terms.
The Case at Hand
The case involved a petitioner challenging a divorce certificate issued by the Chairman of a Union Council in Islamabad. The petitioner argued that the Chairman lacked jurisdiction because both spouses were residing in the United Kingdom at the time of the divorce. The court had to decide whether the Union Council in Pakistan had the authority to issue the divorce certificate under the Muslim Family Laws Ordinance 1961.
Jurisdiction of Union Councils
One of the central issues in the case was whether the Chairman of a Union Council in Pakistan could handle divorce proceedings for expatriate Pakistanis. The court clarified that the Muslim Family Laws Ordinance 1961 applies to all Muslim citizens of Pakistan, regardless of where they reside. This means that even if a Pakistani couple lives abroad, the Union Council in Pakistan retains jurisdiction over their divorce proceedings.
The court also emphasized that the Ordinance aims to maintain a public record of marriages and divorces. Allowing foreign missions to handle such matters without sharing records with Pakistan would defeat this purpose. Therefore, the court ruled that the Chairman of the relevant Union Council in Pakistan has the authority to issue divorce certificates, even for expatriate couples.
No-Fault Divorce in Pakistan
Another important aspect of the judgment was the principle of no-fault divorce. In Pakistan, a marriage can be dissolved without proving fault on either side. This principle, established in the landmark case of Khurshid Bibi v. Muhammad Amin, ensures that a spouse can seek divorce simply by stating an inability to continue the marriage.
The court reiterated that the conduct of the husband or wife is irrelevant when it comes to the validity of the divorce. The only exception is determining the wife’s entitlement to dower. This principle applies whether the divorce is initiated by the husband under Section 7 of the Ordinance, by the wife under Section 8, or through the Family Courts Act 1964.
The Role of Arbitration Councils
The Muslim Family Laws Ordinance 1961 requires the Chairman of the Union Council to form an Arbitration Council to attempt reconciliation between the spouses within 90 days of the divorce notice. If reconciliation fails, the Chairman issues a divorce certificate after the 90-day period.
The court clarified that while the procedural requirements under Section 7 are mandatory, non-compliance does not invalidate the divorce. For example, if the husband fails to notify the Chairman or the wife does not receive the notice, the divorce still becomes effective after 90 days. However, the husband may face penalties for not following the proper procedure.
The Invalidity of the SRO
The petitioner relied on an SRO (Statutory Regulatory Order) that authorized Pakistan’s foreign missions to appoint Chairmen for divorce proceedings. The court declared this SRO ultra vires, meaning it went beyond the authority granted under the Muslim Family Laws Ordinance 1961. The court explained that the Federal Government cannot delegate its powers to the Ministry of External Affairs without explicit authorization.
This ruling highlights the importance of adhering to the legal framework established by the Ordinance. It also underscores the need for legislative amendments if Pakistan wishes to establish Arbitration Councils in its foreign missions.
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