ISLAMIC PERSONAL LAW I

MFLO 1961 SECTION 7

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Introduction

Divorce in Islam can take a diversity of forms, some initiate by the husband and some initiated
by the wife. The main traditional legal categories are talaq, Kuhla, judicial divorce and oaths.
The theory and practice of divorce in the Islamic world have varied according to time and place. 1

Section 7 of Muslim family law Ordinance is as follows:

Talaq:
(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 Chairman 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, or with both.

(3) Save as provided in sub-section (5) a talaq, unless revoked expressly or otherwise shall
not be effective until the expiration of ninety days from the day on which the notice under sub-
section (1) is delivered to the Chairman.

(4) Within thirty days of the receipt of the notice under sub-section (1), the Chairman
shall constitute an Arbitration Council for the purpose of bringing about reconciliation between
the parties, and the Arbitration Council shall take all steps necessary to bring about such
reconciliation.

(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until
the period mentioned in sub-section (3) or the pregnancy, whichever later, ends.

(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective
under this section from remarrying the same husband, without an intervening marriage with a
third person, unless such termination is for the third time so effective.

1
https://en.wikipedia.org/wiki/Divorce_in_Islam
As far as section 7 is concerned, this section is applicable to those cases only where the husband
has made pronouncement of talaq to his wife. In such a case, the husband shall give a notice,
in writing, of such pronouncement to the Chairman. Failure to give the aforesaid notice by the
husband is considered a crime punishable with imprisonment or fine or with both.

Sub-section (3) is of utmost importance in our analysis. According to this sub-section, a talaq
shall not be effective until after the expiration of 90 days from the delivery of notice to the
Chairman.

This provision together with sub-section (5) has invited some criticism from various sections of
the society and since the promulgation of the Ordinance. Scholars have voiced their concerns
over these provisions and have held the same to be against the injunctions of the Holy Quran and
Sunnah of the Prophet Muhammad (may peace be upon him).

The main issues in respect of these provisions are as follows:

1. That the period of iddah prescribed by the Holy Quran is different for different situations
whereas sub-section (3) of section 7 has made it uniform.2

2. That under the Muhammaden Law no notice is required to be given to the Chairman for talaq
to be effective.

3. That the period of iddah has been made to run under sub-section (3) from the date of notice to
the Chairman and not from the date of pronouncement of talaq which is against the injunctions of
Islam.

In a relatively recent decision, the Hon’ble Federal Shariat Court has held the provisions
of section 7(3) and (5) to be repugnant to the injunctions of Islam.

Arguments against this Section

1. The Hon’ble Fedral Shariat Court observed that there is no period of iddah for a marriage
which has not been consummated. Similarly, in case of talaq during period of pregnancy the

2
http://courtingthelaw.com/2015/07/03/commentary/divorce-under-the-muhammadan-law-and-section-7-of-
the-muslim-family-laws-ordinance-1961/
 iddah stands terminated on the delivery of the child. Keeping a period of 90 days in such
situations is clearly violating the injunctions of Islam.

2. On the second and the third issue, the Court stated that the period of iddat is to commence
from the date of pronouncement of talaq

3. No iddah should not be observed from the day of delivery of notice to the Chairman as the
talaq takes effect from the date of pronouncement of talaq by the husband.

In view the Court declared that section 7 of the Muslim Family Laws Ordinance, 1961 cannot be
declared violative of the injunctions of Islam.

However, the provisions contained in sub-sections (3) and (5) of the said section 7cannot be
maintained.

In a case where husband has pronounced talaq to his wife, however willfully or due to
neglect has failed to give notice to the Chairman; would talaq be ineffective in such a case
and the husband be allowed to take advantage of his own neglect?

With respect to this issue, the following pronouncements have been made by the Apex Court:

“In view of the provisions of section 7(3) of the Ordinance talaq would become effective only
after notice of talaq is given to the Chairman and the period of three months provided for
bringing out a reconciliation between the parties has expired. Where the husband does not give
the notice of talaq to the Chairman, it can be deemed that he has revoked the talaq.”

PLD 1963 SC 51
Nevertheless, the Hon’ble Supreme Court has made a very significant and important statement
in the above case with respect to section 7 in the following words:

“Whether the result achieved is in strict conformity with Islamic Law is a question which does
not fall within the province of this Court by reason of articles 5 and 6 of the Constitution”

“The learned counsel for the petitioner concedes that no notice of the alleged divorce was given
to the Chairman as required by section 7(1) of the Muslim Family Laws Ordinance. That being
so the alleged divorce, in view of the express provision of the sub-section (3) of section 7 of the
said Ordinance, is yet to become effective”
1970 SCMR 845
Now, the position which emerges is that according to the

Supreme Court ‘talaq in any mode whatsoever, does not take effect unless a notice is delivered
to the Chairman.

Federal Shariat Court directly saying nothing about the service of notice to the Chairman,
however, holding that the

‘‘period of iddah should run from the pronouncement of talaq rather than the
delivery of notice and this period is to be calculated strictly in accordance with the
rules of Islamic Law’’

Conclusion:
There is an inherent contradiction between the verdicts of the two respectable Courts because if
the period of iddah is to run from the pronouncement of talaq and is to be calculated in
accordance with the Islamic Law then the talaq would become effective on the expiry of such
Islamic period of iddah and not from the delivery of notice. In other words, the requirement of
notice to the Chairman for the talaq to be effective has been done away by the Hon’ble Shariat
Court.

References:
http://courtingthelaw.com/2015/07/03/commentary/divorce-under-the-muhammadan-law-and-
section-7-of-the-muslim-family-laws-ordinance-1961/

https://en.wikipedia.org/wiki/Divorce_in_Islam