Research Directorate, Immigration and Refugee Board of Canada

1. Overview

Sources indicate that laws governing divorce in Pakistan differ depending on the religion of the parties involved (OECD 8 Mar. 2019, 4; Denmark 31 May 2018, 1). Sources describe Muslim marriages as a "contract," which can be dissolved by either party in the contract (Abbasi 29 Dec. 2018, 1; Sweden 7 Mar. 2015, 1). Sources indicate that under Islamic law, marriages can be dissolved by the husband or the wife, by mutual consent of both parties, or by the court (Abbasi 29 Dec. 2018, 4; Sweden 7 Mar. 2015, 1-2). According to the US Department of State's Reciprocity Schedule for Pakistan, "registration authorities can only register Muslim marriages and divorces," and records for non-Muslims are registered with the respective community's "head offic[e]" (US n.d.). Similarly, the Social Institutions and Gender Index (SIGI) by the Organisation for Economic Co-operation and Development (OECD) states that the respective religious laws require marriages to be registered with the "relevant religious authorities" (OECD 8 Mar. 2019, 2). Sources indicate that the Supreme Court issued a decision in January 2019 ordering Union Councils across the country to register Christian marriages (Pakistan Today 16 Jan. 2019; The Nation 17 Jan. 2019), and that prior to the decision, Christian marriages were "only" registered by churches (Pakistan Today 16 Jan. 2019) or "solemnised" by clergy (The Nation 17 Jan. 2019). Information on the implementation of the Supreme Court decision could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2. Registration and Issuing Authority

Sources indicate that the Union Council is responsible for issuing divorce certificates for Muslim citizens (Denmark 31 May 2018, 2; US n.d.) and for registering divorces (Denmark 31 May 2018, 2). According to a report on civil registers and registration routines in Pakistan by the Danish National ID Centre, an "independent administrative body under the Ministry of Immigration and Integration" that is responsible for providing advice on "questions of identity determination and ID control of foreign nationals" (Denmark n.d.), Union Councils are the lowest tier of a three-tier local government system (Denmark 30 May 2018, 1). The same source further indicates that Union Councils are responsible for maintaining a "handwritten manual register and an archive of all civil status documents" that they have issued, including the breeder documents submitted by the applicants (Denmark 30 May 2018, 1). Similarly, a report on digital birth registration in Pakistan by GSMA, an organization that "represents the interests of mobile operators worldwide," and includes a Digital Identity program that raises awareness of the "opportunity of mobile-enabled digital identity and life-enhancing services," states that a Union Council is the "smallest administrative unit in local government, which creates and maintains civil registration records for residents and report these statistics to the National Database and Registration Authority (NADRA) for authentication purposes" (GSMA 8 Mar. 2018, 2, 16).

3. Divorce Initiated by the Husband

Sources indicate that under Islamic law, the husband has an ["absolute and unilateral" (Abbasi 29 Dec. 2018, 1-2) or "inalienable" (Sweden 7 Mar. 2015, 2)] right to divorce by pronouncing the word talaq [divorce or "I divorce you" (Sweden 7 Mar. 2015, 2)] (Abbasi 29 Dec. 2018, 1-2; OECD 8 Mar. 2019; Sweden 7 Mar. 2015, 2). Sources indicate that there is no specific requirement on how talaq is pronounced; it can be in writing, in oral form or digitally [such as by text message (Lawyer, Islamabad 20 June 2019)] (Lawyer, Islamabad 20 June 2019; Yefet Summer 2011, 558). The requirements and procedures of divorce by talaq are described in section 7 of the Muslim Family Laws Ordinance, 1961 as follows:

1. Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the [C]hairman [1] a notice in writing of his having done so, and shall supply a copy thereof to the wife.
2. Whoever, contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees [approximately C$43], or with both.
3. Save as provided in sub-section (5) talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from day on which notice under sub-section (1) is delivered to the Chairman.
4. Within thirty days of the receipt of notice under [s]ub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
5. If the wife be [sic] pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in [s]ub-section (3) or the pregnancy, whichever later, ends.
6. Nothing shall debar a wife whose marriage has been terminated by talaq effective under his [sic] section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective. (Pakistan 1961, Sec. 7)

The US Reciprocity Schedule states that the husband must provide written notification to the Union Council where the wife resides or where the wedding took place (US n.d.). According to a lawyer at a Karachi-based law firm, whose practice areas include family law, the husband is required to send written notice that the divorce has been pronounced by registered post to the Union Council where the wife resides for the issuance of the divorce certificate, and must also provide a copy of the notice to the wife (Lawyer, Karachi 12 July 2019). Similarly, a report by the Swedish Migration Agency indicates that, in the written notice of talaq, the husband must include the address of his wife to allow the "[U]nion [C]ouncil or government office to issue notices to her by registered post"; or obtain permission from the Union Council to allow the notice to be served through the wife's father, mother, adult brother or sister; or publish a notice in "a newspaper approved by the concerned government office," if the wife's location is unknown (Sweden 7 Mar. 2015, 2-3).

In a telephone interview with the Research Directorate, a lawyer at a law firm with offices in Islamabad, whose practice areas include family law, stated that if the husband does not submit written notification to the Union Council, the divorce is still considered valid ninety days after he pronounces talaq (Lawyer, Islamabad 20 June 2019). In contrast, the Swedish Migration Agency states that the husband's failure to send a notification for the divorce to the relevant government office will render the divorce "ineffective … in law," while also noting that according to Islamic scholars, the divorce is considered "effective and binding" once the husband pronounces talaq (Sweden 7 Mar. 2015, 3). Sources indicate that the requirement to submit a written notification by the husband to the Union Council has been subject to inconsistent interpretations by the courts with some decisions finding that the divorce is invalid without a written notification, and other decisions finding the divorce is valid without a notification (Abbasi 29 Dec. 2018; 4-5; Munir 2013, 5-8; Yefet Summer 2011, 579-583).

Sources indicate that within thirty days of receiving a notice of divorce, the chairman of the Union Council must convene an arbitration council to attempt to reconcile the two parties (US n.d.; Denmark 31 May 2018, 5). The US Reciprocity Schedule indicates that once the arbitration council is convened, it must issue notices to both parties every month for three months to attempt reconciliation (US n.d.). Sources state that the divorce is considered valid ninety days after the notice of divorce is submitted to the Union Council (Denmark 31 May 2018, 5; Lawyer, Islamabad 20 June 2019). According to sources, the divorce certificate [or the certificate of talaq (Sweden 7 Mar. 2015, 3)] is issued ninety days after receipt of the divorce declaration (Sweden 7 Mar. 2015, 3; Denmark 31 May 2018, 5). The Danish National ID Centre indicates, based on interviews with Union Councils in Ahmadal and Rawalpindi, that if the divorce certificate is lost, a new one can be issued (Denmark 31 May 2018, 5).

4. Divorce Initiated by the Wife

Sources state that the wife can be granted the right of divorce in the marriage contract or nikah nama [nikahnama] (Abbasi 29 Dec. 2018, 4-5; US n.d.; Sweden 7 Mar. 2015, 4). According to the US Reciprocity Schedule, the right is "rare[ly]" granted but if the wife has the right of divorce, the procedure to divorce is the same as a talaq divorce (US n.d.).

According to sources, the wife can apply for the right of divorce through family court, known as khula divorce (Lawyer, Islamabad 20 June 2019, 4; Sweden 7 Mar. 2015, 4). Sources indicate that to obtain khula, the wife must state [before the court (Abbasi 29 Dec. 2018, 4; Lawyer, Islamabad 20 June 2019)] that she can no longer live with her husband "within the limits prescribed by Allah" (Abbasi 29 Dec. 2018, 4; Sweden 7 Mar. 2015, 4; Lawyer, Islamabad 20 June 2019). According to sources, the wife must be willing to return her dower (haq mehr) (Lawyer, Islamabad 20 June 2019; Lawyer, Karachi 12 July 2019). Sources indicate that the divorce will not be invalidated by the wife's failure to return the dower (Abbasi 29 Dec. 2018, 15; Lawyer, Karachi 12 July 2019). According to a 2018 article by Muhammad Zubair Abbasi, an associate professor of law at the Lahore University of Management Sciences (LUMS), who has publications on Muslim women's right to divorce in Pakistan (LUMS n.d.), applying to family court has become "a mere formality" as the success rate is "almost 100%" (Abbasi 29 Dec. 2018, 10). In correspondence with the Research Directorate, a lawyer at a Lahore-based law firm, whose practice areas include family law, indicated that if the reconciliation attempts by the family court at the preliminary stage of proceedings fail, the wife is granted khula, because "forcing" the husband and wife to live together in a "hateful union" is considered contrary to the "norms of justice" (Lawyer, Lahore 16 July 2019). Similarly, the Karachi-based lawyer stated that the family court will issue a decree for dissolution of the marriage when the reconciliation proceedings fail, without going to trial (Lawyer, Karachi 16 July 2019).

According to sources, the family court issues the divorce decree when it finds the couple can no longer live together (Lawyer, Karachi 12 July 2019; Lawyer, Islamabad 20 June 2019). Sources indicate that the family court notifies the Union Council once it issues the divorce decree (Sweden 7 Mar. 2015, 6; Lawyer, Karachi 12 July 2019). In contrast, the Islamabad-based lawyer indicated that the wife is required to submit the divorce decree to the Union Council and that, ninety days later, the divorce will become effective (Lawyer, Islamabad 20 June 2019). The US Reciprocity Schedule indicates that the family court is required to submit notification to the Union Council within seven days of issuing the divorce decree, but that "[i]n reality," it often does not, leaving it to the wife to notify the Union Council in order to make the divorce valid (US n.d.). Sources indicate that upon receiving notification of the divorce, the Union Council follows the same procedure as for talaq divorce (Sweden 7 Mar. 2015, 6; Lawyer, Karachi 12 July 2019; US n.d.). The Islamabad-based lawyer stated that if the wife does not submit the divorce decree to the Union Council, the divorce is still considered valid after ninety days; however, she can be sentenced to one year in prison in accordance with the Muslim Family Laws Ordinance, 1961 (Lawyer, Islamabad 20 June 2019). According to the article by Muhammad Zubair Abbasi, a khula divorce becomes effective the moment it is pronounced by the court, but "[i]n practice," the chairman of the Union Council treats the divorce decree as a notification of talaq, and the divorce is considered effective after the Union Council issues the "certificate of effectiveness of divorce" (Abbasi 29 Dec. 2018, 14).

5. Divorce by Mutual Consent

Sources indicate that if both parties agree to divorce, they can divorce by mutual consent by [signing] a divorce deed (Sweden 7 Mar. 2015, 3; Lawyer, Islamabad 20 June 2019; Lawyer, Karachi 12 July 2019). The Islamabad-based lawyer indicated that there is no legal requirement for the deed to be in written form, but it is preferred so the divorce can be proven (Lawyer, Islamabad 20 June 2019). Sources indicate that the divorcing couple can send a written notification to the Union Council [or government office], which will follow the procedure to issue notices before issuing the "dissolution of marriage certificate" (Sweden 7 Mar. 2015; Lawyer, Karachi 12 July 2019). Further and corroborating information on the procedure for mutual consent divorce could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

6. Divorce Among Non-Muslims

According to the US Reciprocity Schedule, divorce procedures for Christians, Hindus, Ahmadis and Parsis are different, but "[t]ypically," a divorce certificate will be issued by a family court after filing a legal case and the divorce is "not generally" registered with the local authorities (US n.d.). Further and corroborating information on the requirements and procedures for divorce among non-Muslims could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

7. Divorce Certificate

The US Reciprocity Schedule notes that the divorce certificate fee and format varies by location (US n.d.). According to the Islamabad-based lawyer, the divorce certificate can be handwritten or computerized, and indicates whether it was a talaq, khula or mutual consent divorce (Lawyer, Islamabad 20 June 2019). Similarly, the US Reciprocity Schedule states that the Union Council "typically" issues handwritten divorce certificates, which indicate whether it was a talaq or khula divorce, and "[i]n recent years," began to issue NADRA divorce certificates (US n.d.). According to sources, NADRA has provided [ninety percent of (Denmark 30 May 2018, 3)] Union Councils with computers, software, [printers (Denmark 30 May 2018, 3)] and NADRA security paper to print civil documents (US n.d.; Denmark 30 May 2018, 3). The Islamabad-based lawyer described computerized certificates as written in Urdu and English and containing three dates: the date of notice, the date of attempt to reconcile and the date of effectiveness of the divorce (Lawyer, Islamabad 20 June 2019). According to the Danish National ID Centre, NADRA security paper has the following security features:

[T]he paper is optically dull; [it includes] a watermark, with three motives (one multitone in the centre portraying Muhammad Ali Jinnah, one duotone in the top left corner showing the coat of arms of Pakistan and one duotone in the top right corner showing the coat of arms of NADRA); a windowed, multi-coloured, UV fluorescent security thread saying NADRA written alternately in reversed; the coat of arms of the relevant province printed in offset in the top left corner. The remaining information, including the barcode and personalisation is printed in toner. (Denmark 30 May 2018, 3)

A sample of a Divorce Registration Certificate issued by the Sindh government, which can be used for either talaq or khula divorce (Lawyer, Karachi 12 July 2019), provided to the Research Directorate by the Karachi-based lawyer, is attached to this Response.

8. Consistency of Divorce Records and Procedures

According to the US Reciprocity Schedule, "[d]ivorce records are inconsistent because most people only request such certificates when required for a specific reason" (US n.d.). Similarly, the Islamabad-based lawyer stated that it is common for people in Pakistan to only apply for documents when there is a reason, such as when needing a visa to travel (Lawyer, Islamabad 20 June 2019). The same source further stated that this could lead to individuals bribing the Union Council to backdate the divorce certificate (Lawyer, Islamabad 20 June 2019). According to the Danish National ID Centre, "incorrect and inaccurate registration" at the Union Council is "a widespread problem" due to "bribery, insufficient skills, ignorance and insufficient maintenance of archives" (Denmark 31 May 2018, 6).

The Danish National ID Centre, based on visits to three Union Councils for its report, indicates that Union Council registration procedures vary by location (Denmark 31 May 2018, 6). The same source describes one Union Council in Rawalpindi which only registered birth, marriage and divorce in the NADRA database at the request of the applicant and registration in NADRA's database together with the issuance of the certificate incurred a fee of 60 PKR [approximately C$0.50], and another Union Council in Ahmadal where birth and marriage registration in both their hard-copy registry and in NADRA's database was a standard practice done "simultaneously" (Denmark 31 May 2018, 6). Similarly, the Islamabad-based lawyer indicated that Union Council procedures are "not consistent" (Lawyer, Islamabad 20 June 2019). The lawyer stated that some Union Councils will issue the handwritten divorce certificate, and only issue the computerized divorce certificate when the parties apply for one, while other Union Councils will issue the computerized divorce certificate "directly" (Lawyer, Islamabad 20 June 2019). The same source further indicated that this can result in some people having only one divorce-related document, while others may have three, including the divorce deed or family court decree, manual divorce certificate and computerized certificate (Lawyer, Islamabad 20 June 2019). Further information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Note

[1] "'Chairman' means the Chairman of the Union Council or a person appointed by the Federal Government in the Cantonment areas or by the Provincial Government in other areas or by an Officer authorised in that behalf by any such Government to discharge the functions of chairman" (Pakistan 1961, Sec. 2(b)).

References

Abbasi, Muhammad Zubair. 29 December 2018. From Faskh to Khula: Transformation of Muslim Women's Right to Divorce in Pakistan (1947-2017). [Accessed 18 June 2019]

Denmark. 31 May 2018. Danish National ID Centre. Pakistan: Marriage Registration and Related Civil Status Documents. [Accessed 18 June 2019]

Denmark. 30 May 2018. Danish National ID Centre. Pakistan: Civil Registers, Registration Routines and Corruption. [Accessed 18 June 2019]

Denmark. N.d. Danish National ID Centre. "About the Danish National ID Centre." [Accessed 20 June 2019]

GSMA. 8 March 2018. Roadmap for Digital Birth Registration: Insights on Scale and Sustainability from Pakistan. [Accessed 15 July 2019]

Lahore University of Management Sciences (LUMS). N.d. "Dr. Zubair Abbasi." [Accessed 3 July 2019]

Lawyer, Islamabad. 20 June 2019. Telephone interview with the Research Directorate.

Lawyer, Karachi. 16 July 2019. Correspondence with the Research Directorate.

Lawyer, Karachi. 12 July 2019. Correspondence with the Research Directorate.

Lawyer, Lahore. 16 July 2019. Correspondence with the Research Directorate.

Munir, Muhammad. 2013. "Reforms in Triple Talaq in the Personal Laws of Muslim States and the Pakistani Legal System: Continuity Versus Change." International Review of Law. No. 2. [Accessed 19 June 2019]

The Nation. 17 January 2019. Syed Sabeehul Hussnain. "SC Orders Enrolment of Christian Marriages." [Accessed 15 July 2019]

Organisation for Economic Co-operation and Development (OECD). 8 March 2019. "Pakistan." Social Institutions and Gender Index (SIGI). [Accessed 18 June 2019]

Pakistan. 1961 (amended 1981). Muslim Family Laws Ordinance, 1961 (VIII of 1961). [Accessed 18 June 2019]

Pakistan Today. 16 January 2019. "SC Orders Union Councils to Begin Registering Christian Marriages." [Accessed 15 July 2019]

Sweden. 7 March 2015. Swedish Migration Agency. Divorce Procedure & Laws in Pakistan. [Accessed 18 June 2019]

United States (US). N.d. Department of State. "Pakistan Reciprocity Schedule." [Accessed 18 June 2019]

Yefet, Karin Carmit. Summer 2011. "The Constitution and Female-Initiated Divorce in Pakistan: Western Liberalism in Islamic Garb." Harvard Journal of Law & Gender. Vol. 34, No. 2. [Accessed 24 June 2019]

Additional Sources Consulted

Oral sources: All Pakistan Women's Association; Pakistan – Consulate General of Pakistan in Toronto, Consulate General of Pakistan in Vancouver, Ministry of Interior, National Database and Registration Authority (NADRA).

Internet sites, including: Al Jazeera; All Pakistan Women's Association; BBC; ecoi.net; Dawn; Factiva; Institute of Policy Studies, Islamabad; Islamabad Capital Territory Administration; Musawah; Muslim Women's League; Pakistan – Council of Islamic Ideology; Punjab – e-Khidmat Markaz; Reuters; The News International; South Asia Journal.

Attachment

Pakistan. N.d. Government of Sindh. "Divorce Registration Certificate." Sent to the Research Directorate by a lawyer at a Karachi-based law firm, 12 July 2019.