Khula After Death

Khula After Death

I recently read an article written by a fellow columnist titled “Khula: A Gateway of Escape For Women”[1] that intrigued my interest to further explore the concept and venture into the topic.

By way of background, in 2013, I initiated khula proceedings on behalf of a friend (alias ‘A’) before the Chair of the Arbitration Council, Islamabad by filing an application of issuance of the divorce certificate. I had filed a direct application (instead of instituting a suit for dissolution of marriage in the civil court) because, under Clause 18 of the niqahnama, A had the delegated right to talaq (divorce) at the time of her niqah. The case proceeded in the normal course and, as envisaged in the law, the Arbitration Council issued notices of talaq on A’s behalf to her husband. After the issuance of the third notice i.e. on expiry of the ninety (90) day period, the Chair of Arbitration Council fixed the matter of recording of A’s statement. A, however, was extremely ill and in London, which is why she could not make it to the Arbitration Council. Consequently, the Arbitration Council declined to proceed in the matter without her recording her statement and the matter was adjourned sine die (that is, without assigning a day for a further meeting or hearing).

Meanwhile, as luck may have it, A passed away in London due to a terminal disease. On A’s passing, her father continued to pursue the issuance of the divorce certificate. To this end, an application for the resumption of proceedings and the issuance of divorce certificate were filed before the Chair, Arbitration Council. After hearing the parties, the Chair of Arbitration Council dismissed the application on grounds that the Council could not issue a divorce certificate to the Applicant (i.e A) after her death. In effect, the Arbitration Council developed a moot question i.e. Could a divorce certificate be issued after the death of the applicant?

A’s father decided to approach the Islamabad High Court and challenged the order of the Arbitration Council. During the course of the hearing before Islamabad High Court, interesting legal points were raised by both parties. They can be summarised as follows:

• The literal meaning of “talaq” is to release a relation or a contract, as per different schools of thought;

• An “irrevocable talaq” is when one party pronounces and executes three talaqs;

• Once the husband has delegated the right of talaq to the wife, he cannot revoke it[2];

• The right of delegated talaq finds its basis from Versus 28 and 29 of Surah Al-Azhad and, in Pakistani law, it is derived from Section 8 of the Muslim Family Law Ordinance, 1961. In order to exercise this right, the procedure enumerated in Section 7 of the 1961 Ordinance must be followed[3];

• Once the wife has exercised her delegated right of talaq, the Arbitration Council is bound to proceed with the process provided in the 1961 Ordinance; and

• If the reconciliation proceedings fail, the Arbitration Council is required to issue a divorce certificate on expiry of ninety days (90)[4].

In the present context, and with relevance to the issue at hand, the Supreme Court of Pakistan in its judgment of Mushtaq Ahmed and another versus Sat Bharai and five others[5] held the following:

“From the facts narrated above it is clear that Gheba Khan died much before the expiry of 90 days. During this period, if he would have been alive, he would have had the option to revoke the divorce pronounced by him. There is a procedure provided under law under which reconciliation proceedings are initiated and it is only on expiry of 90 days of service of notice that the talak becomes effective. On the date Gheba Khan died, Talak had not become effective in terms of Section 7 of the Ordinance. Therefore, the respondent continued to be his wife.”

It follows from the above that a person will not be deemed to be divorced (and a divorce certificate will therefore not be issued) if the applicant dies before the expiry of the ninety (90) day period. This is because the applicant could have reconciled (even though the applicant showed no such intention at the relevant time) with the spouse before the expiry of the statutory period.

This, however, is not relevant to the facts of A’s matter, as A had died after the expiry of the statutory period and therefore, the judgment of the Supreme Court appeared to be inapplicable. Further research into the law books brought up case-law suggesting that after commencement of proceedings before the Chair, Arbitration Council, parties could reconcile (if they felt so), otherwise, at the expiry of the statutory period of ninety (90) days, it was incumbent upon the Chair, Arbitration Council to issue a certificate of effectiveness of divorce.[6]

Accordingly, the Islamabad High Court after considering all the aspects of the case, authoritatively declared in its judgment dated 29 December 2017[7] that A had successfully obtained khula and thus had been divorced upon the expiry of the statutory period of (90) days, even though she had died after the statutory period and without recording any statement or attending any reconciliation proceedings. The court directed the Arbitration Council to issue a divorce certificate in A’s name with effect from the date of expiry of the statutory period of ninety (90) days. This is a well written judgment which must be complimented as it has created a very logical and an important precedent.

To conclude, I must emphasise that divorce is a very serious right, but usually gets denounced at social, religious and community levels. The right to divorce must be exercised with great caution because intention plays a pivotal role in both confirming the divorce and during the reconciliation proceedings. If an applicant seeks to obtain divorce, he or she must be mindful of the fact that their intention can be reconciled within the statutory period of ninety (90) on the expiry of which divorce will be deemed to be confirmed even though the applicant dies or has no intention (in his or her mind) to pursue the divorce. Khula is thus possible after death.

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References:

[1] Authored by Ms. Noor Ul Ain Iftikhar; http://courtingthelaw.com/2018/02/16/commentary/khula-a-gateway-of-escape-for-women/

[2] Section 101, Chapter 12 of the book titled “Mehmoa Khawaneen-e-Islam- 2^nd Edition”

[3] Sajid Hussain Tanoli versus Nadia Khattak and three others (reported as 2013 CLC 1625); Khawer Iqbal versus Federation of Pakistan (reported as 2013 MLD 1711)

[4] Mst. Gul Zamreen and 3 others versus Mst. Aasia (reported as 2017 CLC 1431)

[5] Reported as 1994 SCMR 1720

[6] Allah Dad versus Mukhtar (reported as 1992 SCMR 1273); and Syed Ali Nawaz Gardezi versus Lt. Col. Muhammad Yusuf (reported as PLD 1961 Supreme Court 51)

[7] Writ Petition No. 470 of 2017

 

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