ENACTMENT NO. 1 OF 1983 ISLAMIC FAMILY LAW ENACTMENT 1983
PART IV - DIVORCE
Section 35. Divorce by talak or order or shiqaq.
(1) Any husband or wife who wishes to obtain a divorce shall make an application for the divorce to the Court in Form 5A in the Fifth Schedule containing-
(a) particulars of the marriage between the parties and the names, ages and sex of the children, if any, of the marriage;
(b) particulars of the facts giving the Court jurisdiction;
(c) particulars of any previous matrimonial proceedings between the parties;
(d) a statement of the reasons for the divorce;
(e) a statement of the steps taken for conciliation, if any;
(f) the terms of any agreement regarding maintenance of the wife and children, if any, of the marriage, or the guardianship and custody of the children if any of the marriage, the place, the division of any assets acquired through the joint efforts of the parties or where no such agreement has been reached, the applicant's proposals; and
(g) particulars of the order sought.
(2) After receiving the application, the Court shall cause a summons to be served on the other party together with a copy of the application and the summons shall require the other party to attend before the Court to enable the Court to inquire whether that other party consents to the divorce or not. If the other party consents to the divorce and the Court is satisfied after due inquiry that the marriage has irretrievably broken down .and there is no possibility of reconciliation, the Court may advise the husband to pronounce one talak before the Court. The Court shall record the talak and then issue a Certificate of Divorce in Form 5B.
(3) If the other party does not consent to the divorce and the Court is of the opinion that there is a reasonable possibility of reconciliation between the parties to the marriage, the Court shall as soon as possible appoint a Conciliatory Committee consisting of a Religious Officer as Chairman and three other persons including one reputable person to act for the husband and the wife respectively. In making the appointment the Court shall, where possible, give preference to close relatives of the parties having knowledge of the circumstances of the case; the Court may give directions to the Committee as to the conduct of the arbitration and they shall conduct it in accordance with such directions. If they are unable to agree or if the Court is not satisfied with their conduct of the arbitration, the Court may dismiss them and appoint other persons in their place.
(4) The Committee shall endeavour to effect a reconciliation within the period of three months from the time of its constitution or within such further time as is approved by the Court; and the Committee shall require the attendance of the parties and shall give each of them an opportunity of being heard and 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.
(5) If the Conciliatory Committee is unable to arrive at a reconciliation and to persuade the parties to resume married life together, the Committee shall issue a certificate to that effect and may append to its certificate such recommendations as it thinks fit regarding maintenance, custody of minor children, division of property and any other matter connected with the marriage.
(6) No advocate or solicitor shall appear or act as such for any party in any proceeding before a Conciliatory Committee and ho party shall be represented by any person, other than a member of his or her family, without the leave of the Conciliatory Committee.
(7) If the Committee reports to the Court that a reconciliation has been reached and that the parties have resumed married life together, the Court shall dismiss the application.
(8) If the Committee informs the Court that it is unable to arrive at a reconciliation and to persuade the parties to resume married life together, the Court shall advise the husband concerned to pronounce one talak before the Court and if the husband does not attend before the Court to pronounce the talak or he refuses to pronounce the talak, the Court shall refer the matter to Hakam in accordance with subsection (10).
(9) The provisions of subsection (3) which requires reference to a Conciliatory Committee shall not apply many case-
(a) where the applicant alleges that he or she has been totally deserted by the other party and does not know the whereabouts of his or her spouse;
(b) where the respondent is temporarily resident outside the State and it is unlikely that he or she will enter the jurisdiction of the appropriate Court within three months next ensuing after the date of the application;
(c) where the other party has been required to appear before a Conciliatory Committee and has wilfully failed to attend;
(d) where the other party is imprisoned for a term of one year or more;
(e) where the applicant alleges that the other party is suffering from an incurable mental illness; or
(f) where the Court is satisfied that there are exceptional circumstances which make reference to a Conciliatory Committee impractical.
(10) (a) If the Court is satisfied that there are constant quarrels between the parties to a marriage, the Court may appoint in accordance with Hukum Syarak, two Hakam (arbitrators) to act for the husband and the wife respectively. In making the appointment the Court shall, where possible, give preference to close, relatives of the parties having knowledge of the circumstances of the case;
(b) the Court may give directions to the Hakam as to the conduct of the arbitration and they shall conduct it in accordance with such directions and according to the Hukum Syarak; if they are unable to agree or if the Court is not satisfied with their conduct of the arbitration, the Court may dismiss them and appoint other Hakam in their places;
(c) the Hakam shall endeavour to obtain from their principals full authority and may, if their authority extends so far, pronounce one talak before the Court if the Court allows them to do so, and in such event, the Court shall record the pronouncement of talak and proceed to register it; or
(d) if the Hakam are of the opinion that the parties should be divorced but are unable for any reason to effect the divorce, the Court shall appoint another Hakam and shall confer on them authority to effect a divorce and shall if they do so record the divorce and issue certificates thereof.