FAMILY LAW IN PAKISTAN By Amna Abbas - PowerPoint Presentation

Slide1

FAMILY LAW IN PAKISTAN

By Amna Abbas

Slide2

List of Enactments

The Muslim Family Laws Ordinance, 1961

Dissolution of Muslim Marriage Act, 1939

Divorce Act, 1869

Guardian and Wards Act, 1890

High Court Rules [Volume II] Guardian and Wards

Maintenance Order Enforcement Act, 1921

Family Courts Act, 1964

Family Court Rules, 1965

Foreign Marriage Act, 1903

Christians Marriage Act 1972

Child Marriage Restraint Act 1929

Slide3

 

The Jurisdiction for Divorce in Pakistan (including for expatriates)

Slide4

Jurisdiction of Family Courts u/ Family Courts Act 1964

In short, family courts have exclusive jurisdiction in following matters:-

Dissolution

of marriage including

Khula

Dower

Maintenance

Restitution

of conjugal

rights

Custody

of children and the visitation rights of parents

Jactitation

of

marriage

Dowry

Personal

property and belongings of wife

Guardianship

Offences

specified in Part II of the Schedule, where one of the spouses is victim of an offence committed by the other

Slide5

Territorial

Jurisdiction

The court in whose local limits cause of action arose either wholly or in part or where the parties reside or last resided together has the jurisdiction to hear the

suit.

However

, in cases of dissolution of marriage and dower the court within the local limits of which the wife ordinarily resides has the jurisdiction.

Slide6

Is Divorce a Court Based Process, or

a

re there Administrative Alternatives?

Slide7

Talaq

For

talaq

to be effectuated, we shall look at s. 7(1) of the Muslim Family Law Ordinance (MFLO) 1961. According to this, once the husband has pronounced

talaq

, in whatsoever form he has chosen, he shall submit a written notice with the Chairman of the Union Council.

The

Chairman shall thereon, within 30 days of receipt of the written notice, constitute an Arbitration Council, which shall commence reconciliation between the parties.

The

parties will have a period of 90 days,

known as

Iddat

,

commencing

from date the Chairman receives the

talaq

notice, before the divorce becomes effective

.

If

the wife is pregnant, the

iddat

period would continue till the end of the pregnancy, and the

talaq

would only become effective after that. Once the

iddat

period has lapsed, the Chairman shall issue a

talaq

certificate to both parties, which shall be effective in letter and spirit.

 

Slide8

Although

notice of the

talaq

to the Chairman is mandatory

, there is still some ambiguity regarding the validity of a divorce without any such notice.

The

Supreme Court of Pakistan decided in Ali Nawaz

Gardezi

v Muhammad Yusuf (1963) that the

notice to the chairman was mandatory and a divorce, however pronounced, would be without effect if the required notice was not given

.

However

, the Federal

Shariat

Court held, in the case of Allah

Rakha

v The Federation of Pakistan 2000,

inter alia

questioned

the mandatory notice requirement to the Chairman of the Arbitration Council, holding that it should not be punishable since no notice is required under the stipulations of the Holy Quran

. Thereon, the FSC conclusively held that the period of

iddat

commences from the date of

pronouncemt

of

Talaq

by the husband and not from the date of delivery of notice to the chairman.

The

matter is currently pending appeal in the

Shariat

Bench of the Supreme Court.

Slide9

Judicial Separation (

Khula

) Judicial procedure

To apply for a

Khula

or judicial divorce, the wife would need to file a suit in the Family

Court.

She

shall do so by merely raising the ground that she feels she can no long live with her husband “within the limits prescribed by Allah’. Such a statement in her suit, undertaken on oath, would be sufficient to establish her case for a

Khula

.

In

khula

divorce, the wife must forgo 50 % - 100 % of her right to

Haq

Mehar

i.e. dower. Claim to any other bridal gifts may be appropriately decided by the court.

If the wife fails to return the required items, the decree for

Khula

does not become ineffective. The husband would simply have to file a separate suit for the recovery of the gifted items.

Slide10

FASKH (Judicial Dissolution

)

 

The procedure adopted for judicial dissolution shall be the same as provided for

Khula

through the court. However, in case of judicial dissolution (

faskh

) the wife would have to base her dissolution of marriage application on any one of the following grounds:

Desertion by the husband for a period of four years;

Failure to provide for maintenance for two years;

Husband’s failure to perform his marital obligations;

Husband’s imprisonment sentence for over a period of seven years;

Husband’s continued impotency since the time of marriage

;

Husband taking another wife in contravention of established legal procedures provided under the MFLO 1961;

Husband's insanity or some other serious illness for a period of two years;

That the wife was a minor at the time of marriage;

Husband’s cruelty, whether physical, mental, or any other form of mistreatment;

Any other ground that may considered valid for the dissolution of marriage under Muslim Personal Law. 

Slide11

Talaq-i-Tafweez

:

This is where the wife has been delegated the right to divorce in the

nikama

/marriage contract.

There

are no procedural impediments in this type of divorce. The marriage can be dissolved easily, without recourse to the courts.

Adopting the process for

Talaq

.

This

delegated

the right of Divorce in her

nikahnama

(clause 18

), entitles

the wife to the same rights as those provided to the husband under

talaq

.

Slide12

Mubaraat

There’s

no need to approach the courts, which means that the marriage are often dissolved quickly, cheaply and with few procedural problems. during this case both husband and married woman might sign a

Mutual Divorce

Deed.

Thereafter they must send

a written notice under section eight of the Muslim Family Law Ordinance to the concerned union council. The Union council can adopt a similar procedure as of normal notice of

talaq

.

Slide13

S

ummary

of

Financial

C

laims a

W

ife

can make for herself on

Divorce

Slide14

In case of Divorce by husband:

Dower

Dowry Articles/Gifts

Maintenance (for

Iddat

)

In case of

Khula

:

Dower (50% or 75% depending the nature

).

Dowry Articles/Gifts

Maintenance (for

Iddat

)

Slide15

      

 

S

ummary

of

Financial Claims

that a

Wife

can make for her

Children

on

Divorce

Slide16

A divorced mother who has custody of the children can claim:

Maintenance, interim as well as for life, for her minors.

The law in some cases recognizes a distinction between sons and daughters i.e. daughters may be awarded maintenance till marriage or for life, whereas in the case of sons it would be till attaining the age of majority and/or financial independence.

Obligation of the father to maintain his adult son who had not yet completed his basic education, enabling him to earn his livelihood, might be considered by the court(s) in an appropriate case.

Slide17

Considerations for Maintenance

Maintenance meant and included food, raiment and

lodging

Such

definition was neither conclusive nor

exhaustive.

It has a

wider connotation and should be given an extended meaning for the purposes of meeting and catering for the present

days’

social, physical, mental growth, upbringing and well-being of the

minor

Keeping

in mind the status of the family, the norms of the society and

his/her

educational

requirement

It would obviously correspond

to

and be commensurate

with the means and the capacity of the father to pay.

Slide18

Muhammadan Law by D. F. Mullah

"370. Maintenance of children and grandchildren.---(1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (section 352) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property

.

(2) If the father is poor, and in capable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.

(

3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances."

Slide19

Child Custody Post Divorce – Brief Overview

Slide20

A

F

amily

C

ourt

can entertain any suit relating to custody of children according to Family Courts Act 1964 under Guardian and Wards Act

.

In case of dispute the Court assumes guardianship of the minor.

Welfare of the

minor.

General rule is that the interest and welfare of the minor child should be of paramount consideration.

Willingness of the major

children.

Visitation

rights.

Custody laws

favour

the mother, however, visitation with the father is usually deemed to be in the best interest of the Minor.

Slide21

UK – Pakistan Protocol

Signed Between:

President

of the Family Division and the Hon. Chief Justice of Pakistan in consultation with senior members of the family judiciary of the

UK and Pakistan having

met on 15th to 17th January 2003 in the Royal Courts of Justice in

London, signed said Protocol.

Desiring

to protect the children of the UK and Pakistan from the harmful effects of wrongful removal or retention from one country to the

other.

In normal circumstances the welfare of a child is best determined by the courts of the country of the child's habitual/ordinary

residence.

In case of wrongful removal, the

judge of the court of the country to which the child has been removed shall not ordinarily exercise jurisdiction over the child, save in so far as it is necessary for the court to order the return of the child to the country of the child's habitual/ordinary residence.

Slide22

UK-Pak Protocol (Cont..)

Liaison Judges – judges of the Superior Courts of both countries nominated to further the aims of the Protocol.

Suplemental

judicial Guidelines:

Raising public awareness of protocol, maintaining awareness and providing continuing education to judiciary and practitioners involved in family-child cases.

Securing access to justice to 'left behind' parents including knowledge of their rights and the opportunity to assert them.

To that end, instituting a system whereby the Judge in each Province of Pakistan is tasked with over-seeing the formation of a Committee to provide legal assistance to such parents.

Recognition of the importance of mediation within the extended family.

Recognition of the importance of liaison between Pakistan and the United Kingdom

Slide23

Hague Convention

Pakistan has become the 4

th

Muslim State in the world, and 1

st

South Asian Country to become signatory to the Hague Convention on the Civil Aspects of Child Abduction on 22

nd

December

2016.

By exercising the powers conferred by Section subsection 3 of the West Pakistan Family Courts Act 1964, the Act has been amended to include Section 6A in Schedule:

“Matters pertaining to Return of the Child under Hague Convention on Civil Aspects of International Child Abduction”

Article 6 of the Convention provides for the designation of a central authority to discharge Convention obligations.

Pakistan’s Central Authority has been designated within the Solicitor General’s Office at the Ministry of Law, Justice and Human Rights

.

Where an incoming application is requested to the Solicitor General’s Office accompanied by a Court order for return, the Central Authority will pursue, verify and return the child accordingly.

If a case is pending the Central Authority will provide legal assistance to the applicant from a contracting state in order to return the child.

Slide24

The Ability to Enforce Foreign Family Orders in Pakistan

Slide25

A creditor under a foreign judgment has three

options:

to

seek direct execution under the relevant provisions of the Civil Procedure Code

, 1908 (

CPC), where the country rendering the judgment is designated by the Government of Pakistan as a

‘reciprocating territory’ [declared as such under S. 44A CPC]

to

file a suit in Pakistan on the basis of a foreign judgment, treating it as a cause of

action;

to

file a suit on the original cause of action

.

Under

Section 14 of the CPC courts in Pakistan shall upon the production of a certified copy of the foreign judgment presume that it has been given by a court of competent jurisdiction, unless the contrary appears form the

record.

The onus of proving that the foreign court was not a court of competent jurisdiction, will lie on the party asserting the same.

Slide26

Enforcement proceedings can only be

challenged

on specific grounds set out in the CPC and these include

:

(

i

) where

the

judgment has not been pronounced by a

Court of competent

jurisdiction

(ii

) where it has

not been given on the merits of the

case

(iii

) where it appears on the face of the proceedings to be founded on an

incorrect view of international law or refusal to recognize the law of Pakistan in cases where such law is

applicable

(iv

) where the proceedings in which the judgment was obtained are

opposed to natural

justice

(v

) where it has been obtained by

fraud

;

and

(vi

) where it sustains a claim founded on a

breach of any law in force in Pakistan.

Slide27

THANK YOU

Slide28

Louise Anne Fairley vs.

Sajjad

Ahmed Rana

[PLD

2007 Lahore

293]

before

Mian

Saqib

Nisar

, J

Petitioner – Citizen of UK

Respondent – Dual nationality of UK and Pakistan, domiciled in Glasgow

They had a minor daughter who was a British National

While the matter of custody was still pending in the foreign Court, the father removed the child from Glasgow.

Mother of minor had sought custody of the minor by invoking habeas corpus petition.

Despite restraining order passed by a Court of foreign jurisdiction, father removed the minor to Pakistan.

Validity:

Father having admitted himself in the jurisdiction of foreign Court was debarred to bring the child to Pakistan

If a Pakistani Court had passed an order directing not to remove a child from the custody of a parent by the other and order was violated, such act would fall within the ambit and scope of Art. 199 of the Constitution and S.491,

Cr.P.C

.

The same rule could be extended to the valid orders of foreign jurisdiction, especially to which jurisdiction the defaulting party (father) had surrendered.