Human Rights Advocacy
Khula Talaq and essence of service of notice
Mohammad Abdur Rahman
A man may divorce his wife at his will, but this is not an unfettered right. Sub-section 1 of section 7 of the Muslim Family Laws Ordinance, 1961 requires any man who wishes to divorce his wife to give the Chairman notice in writing of his having done so and to supply a copy thereof to the wife. Now the question is whether this provision of law is obligatory on the part of the husband when the marriage in question is dissolved by khula talaq. The family courts, lawyers and parties involved are presently being confronted with contradictory arguments on the point of time when khula talaq becomes effective in the eyes of law. So, a study is warranted.
The proponents of no service of notice argue that in khula talaq the averseness is on the side of the wife and she desires a separation. So, a divorce by khula is a divorce with the consent and at the instance of the wife. According to them, since section 7(1) speaks about man's wish to divorce his wife, khula talaq is not within the purview of this section. Hence, 'no notice under section 7(1) - no talaq' is not applicable to khula talaq.
On the other hand, those who are in favour of strict compliance with section 7(1) even in khula talaq (the writer is one of them) lay emphasis on the words 'talaq in any form whatsoever.' According to them, service of notice to the Chairman and to the wife is a statutory obligation and unless the provisions of section 7(1), Muslim Family Laws Ordinance, 1961 are complied with regarding service of notice to the Chairman of the Union Council or Paurashava or Mayor of the Corporation, as the case may be, a talaq would fail to operate. There are so many legal decisions to the effect that unless the provisions of section 7(1) are complied with regarding service of notice a talaq would fail to operate. Sayed Ali Nwaz Gardezi Vs Lt Col. Md. Yusuf 15 DLR (SC) 9.
However, to come within the ambit of section 7, khula talaq must have to overcome some formidable hurdles.
First, it should be made clear that dissolution of marriage by khula is a form of talaq. Mullah himself in his Principles of Mahomedan Law (19th ed.) at page 266 in sub-section 4 of section 319 lays down that as in talak, so in khula and mubara'at, the wife is bound to observe the iddat. Since khula talaq belongs to talaq genre, it surmounts first hurdle.
Second, although in khula talaq aversion is on the side of wife, she needs consent of her husband. And if the husband does not wish to consent, she can't get her released from the marriage tie. So, wife's wish completely depends on the wish of the husband. The wish of the husband is so important that the wife must make him convince even by providing him with a consideration. Thus, khula talaq is a contract divorce in nature where wife gives or agrees to give a consideration to the husband for her release. If the husband does not accept the offer of the wife, she can't get her released. Husband's wish being so important, the wording of section 7(1) (any man who wishes) is in compliance with the notion of khula talaq. So, in khula talaq, wife would rather get her husband divorced her so as to release her in return for a consideration. It is the husband who ultimately divorces the wife and not vice versa.
Third, by enacting section 8, the legislature intended to bring all forms of talaq within the purview of section 7. Section 8 speaks about dissolution of marriage otherwise than by talaq. According to section 8, where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq, the provisions of section 7 shall, mutatis mutandis, and so far as applicable, apply.
Thus, such a talaq (talaq by tafweez) - when it is effected not by the husband but by the wife in exercise of the right delegated to her by her husband - is completely different from khula talaq. So, there is no need to read sub-section (1) of section 7 with necessary changes -- mutatis mutandis -- which means 'notices to the Chairman with a copy to the husband' in place of 'to the wife by the husband' -- if the talaq is khula talaq.
Now the question is whether khula talaq does come within the domain of latter portion of section 8, namely, ''where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq.'' The proponents of 'no service of notice' suggest that khula talaq falls in the category of dissolution otherwise than by talaq, despite their acknowledgement that in khula talaq the husband divorces his wife (Hand Book of Muslim Family Laws, 1993, DLR page 78). The reason behind this opinion is twofold. First, intervention by the Arbitration Council is not likely to be of much use when the dissolution of marriage has taken place by the mutual consent of both the husband and the wife. Second, what the parties have agreed to do in private, their chosen representatives are not likely to act differently elsewhere.
But, on close examination of section 7 of the Ordinace, it seems that the intention of the legislature is limited to mere service of notice as far as strict compliance with this section on the part of the parties concerned is concerned. Contravention of the provisions of sub-section (1) has been made punishable. But, although under sub-section (4) of section 7 the Chairman shall constitute an Arbitration Council for the purpose of bringing about reconciliation between the parties, the provisions of sub-section (4) are not mandatory -- because talaq may even be effective without constitution of an Arbitration Council - the observance of provisions of section 7(1) and (3) is enough.
So, section 7 lost its spirit as far as effort for reconciliation is concerned. By not making contravention of the provisions of sub-section (4) punishable and by allowing automatic transmission on expiration of ninety days, the legislature intended to stop hasty practice of talaq at least by ensuring that compliance with sub-section (1) of section 7 is a compulsory formality. So, the essence of section 7 is one of service of notice and not whether the Arbitration Council is useful to the parties concerned or whether their chosen representatives can act differently elsewhere, even though section 7 encourages reconciliation.
Fourth, the proponents of no service of notice hold that so far as section 7 is concerned the legislature has attempted to incorporate the Islamic law provisions with regard to the two forms of ''Talaq - us - Sunnat'' viz, ''Talaq Ahsan'' and ''Talaq Hasan'', in this section. By extending the sphere of section 7, they also hold that ''Talaq Bidaat'' is not outside the purview of the section as the words ''Talaq in any form whatsoever'' occurring in sub-section (1) of section 7 clearly indicate. (Hand Book of Muslim Family Laws, 1993, DLR page 72). Talaq-i-bidaat consists in the pronouncement of 3 (three) talaqs in one sitting which immediately thereafter dissolve the marriage tie.
In fact, khula in itself is not a form of talaq; it's a mere device under which wife desires divorce from her husband and if the husband accepts her offer, then it is up to the husband to decide what recognised form of talaq he will apply to divorce her, even though he may take decision in consultation with the wife. From practical experience it has been observed that the wife accepts khula by way of Talaq-i-bidaat i.e. marriage is dissolved by pronouncement of 3 (three) talaqs in one sitting before a Nikah Registrar and talaqnamah is prepared in Khula Talaq form incorporating this method. After the whole process the talaq becomes khula talaq in the end, even if the husband divorces his wife by Talaq-i-bidaat.If, according to them, Talaq-i-bidaat is within the purview of section 7, then why not khula talaq by way of Talaq-i-bidaat is within the ambit of section 7? It seems grotesquely unfair if such a talaq is outside the section 7.
This is good to see that the formality under section 7(1) is observed by the husband even in khula talaq. Service of notice upon the Chairman will bind the husband unless the talaq is revoked within time and it will act as estoppel upon the husband. Notice needs to be served upon the Chairman with a view to avoiding subsequent fabrication, because in khula talaq wife may waive dower as a consideration for her release. Also, from practical experience it has been observed that when the wife institutes a suit for dower and maintenance, the husband claims that their marriage was dissolved by khula talaq, but the wife denying the fact of khula talaq alleges that the talaqnamah is fabricated one and collusively prepared. Inclusion of khula talaq within the purview of section 7 will help resolve this problem immensely. Here, service of notice will act as a second guard. Moreover, if we speak of inclusion of khula talaq in section 7(1), since section 7(1) speaks about talaq whatsoever, that seems more positive interpretation of section 7(1). Thus, it will be ironic if khula talaq is not within the purview of section 7.
However, this may not be imprudent subscribing to the view of the proponents of no service of notice so far as their view concerns second limb of requirements under sub-section 1 of section 7 i.e. supply of a copy of the notice to the wife. In khula talaq, aversion being on the side of the wife, the husband divorces her according to her wish. So, her constructive notice about ensuing talaq may qualify the requirement under the second limb. This reasoning may fit in the decision of the High Court Division in the case of Md. Serajul Islam -Vs - Mstt. Helena Begum, 1995 BLT 40. Let's get through what the legislature meant to mean exactly.
The author is Asstt. Judge, Family Court, Rangpur.