ISLAMIC FAMILY LAW ORDINANCE, 2001
PART V - DISSOLUTION OF MARRIAGE
Section 45. Divorce by talaq or by order
(1) A husband or a wife who desires divorce shall present an application for divorce to the Court in the prescribed form, accompanied by a declaration containing-
(a) particulars of the marriage and the names, ages and sex of the children, if any, of the marriage;
(b) particulars of the facts giving the Courts jurisdiction under section 43;
(c) particulars of any previous matrimonial proceedings between the parties, including the place of the proceedings;
(d) a statement as to the reasons for desiring divorce;
(e) a statement as to whether any, and, if so, what steps had been taken to effect reconciliation;
(f) the terms of any agreement regarding maintenance and habitation of the wife and the children of the marriage, if any, the care and custody of the children of the marriage, if any, and the division of any assets acquired through the joint effort of the parties, if any, or, where no such agreement has been reached, the applicant’s proposals regarding those matters; and
(g) particulars of the order sought.
(2) Upon receiving an application for divorce, the Court shall cause a summons to be served on the other party together with a copy of the application and the statutory declaration made by the applicant, and the summons shall direct the other party to appear before the Court so as to enable it to inquire whether or not the other party consents to the divorce.
(3) If the other party consents to the divorce and the Court is satisfied after due inquiry and investigation that the marriage has irretrievably broken down, the Court shall advise the husband to pronounce one talaq before the Court.
(4) The Court shall record the fact of the pronouncement of one talaq, and shall send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for Registration.
(5) Where the other party does not consent to the divorce or it appears to the Court that there is reasonable possibility of a reconciliation between the parties, the Court shall as soon as possible appoint a conciliatory committee consisting of a Religious Officer as Chairman and two other persons, one to act for the husband and the other for the wife, and refer the case to the conciliatory committee.
(6) In appointing the two persons under subsection (5), the Court shall, where possible, give preference to close relatives of the parties having knowledge of the circumstances of the case.
(7) The Court may give directions to the conciliatory committee as to the conduct of the conciliation and it shall conduct it in accordance with such directions.
(8) If the conciliatory committee is unable to agree, or if the Court is not satisfied with its conduct of the conciliation, the Court may remove the conciliatory committee and appoint another conciliatory committee in its place.
(9) The conciliatory committee shall endeavour to effect reconciliation within a period of six months from the date of it being constituted or such further period as may be allowed by the Court.
(10) The conciliatory committee shall require the attendance of the parties and shall give each of them an opportunity of being heard and may hear such other persons and make such inquiries as it thinks fit, and may, if it considers it necessary, adjourn its proceedings from time to time.
(11) If the conciliatory committee is unable to effect reconciliation and is unable to persuade the parties to resume their conjugal relationship, it shall issue a certificate to that effect and may append to the certificate such recommendations as it thinks fit regarding maintenance and custody of the minor children of the marriage, if any, regarding division of property, and regarding other matters related to the marriage.
(12) No Peguam Syarie shall appear or act for any party in any proceeding before a conciliatory committee and no party shall be represented by any person, other than a close member of his or her family, without the leave of the conciliatory committee.
(13) Where the conciliatory committee reports that reconciliation has been effected and the parties have resumed their conjugal relationship, the Court shall dismiss the application for divorce.
(14) Where the conciliatory committee submits to the Court a certificate that it is unable to effect reconciliation and to persuade the parties to resume the conjugal relationship, the Court shall advise the husband to pronounce one talaq, or when the husband refuses to pronounce one talaq, the Court shall refer the case to the Hakam for action according to section 46.
(15) The requirement of subsection (5) as to reference to a conciliatory committee shall not apply in any case –
(a) where the applicant alleges that he or she has been deserted by and does not know the where-abouts of the other party;
(b) where the other party is residing outside the State and it is unlikely that he or she will be within the jurisdiction of the Court within six months after the date of the application;
(c) where the other party is imprisoned for a term of three years or more;
(d) where the applicant alleges that the other party is suffering from incurable mental illness; or
(e) where the Court is satisfied that there are exceptional circumstances which make reference to a conciliatory committee impracticable.
(16) A talaq pronounced by a husband unless revoked earlier, either expressly or constructively, or an order made by the Court, shall not operate to dissolve the marriage until the expiry of the ‘iddah period.
(17) If the wife is pregnant at the time the talaq is pronounced or the order is made, the talaq or the order shall not be effective to dissolve the marriage until the pregnancy ends.
Copyright © PNMB-LawNet. All rights reserved.