All talaq forms remain ineffective for 90 days, says SC confirms wife’s dismissal

The Supreme Court has upheld a judgment of the Sindh High Court which validated the withdrawal of a notice of divorce issued by a wife acting under delegated powers, reiterating that no form of talaq – whether pronounced by a husband or exercised by delegation – attains legal effect before the expiration of the mandatory period of 90 days provided for in Section 7 of the Muslim Family Law Ordinance, 1961.

A three-judge bench headed by Chief Justice Yahya Afridi dismissed the appeal filed by Muhammad Hassan Sultan, who had challenged two orders issued by the Karachi Union/Arbitration Board. The controversy arose from a notice of divorce issued by his wife on July 3, 2023, which she withdrew on August 10, well within the legal deadlines, prompting the President of the Council to close the debates the next day.

Read: SC pushes for reforms to end custodial killings

The Court noted that the statutory framework leaves no ambiguity: Section 7 applies to “all forms of talaq, in whatever form”, and the law makes no distinction between talaq-e-biddat, talaq-e-ahsan or divorce exercised by delegation of authority.

Citing previous precedents, the bench reiterated that “no form of talaq shall be effective before the expiration of a period of ninety days from the date on which the written notice is given to the President”, adding that the effect of Section 7 is “mandatory”, permitting removal during the reconciliation window.

At the heart of the matter was the delegation clause in the couple’s marriage contract. The bench noted that there was “no dispute that the petitioner had delegated this right without imposing any restrictions or conditions and in fact specifically stated that it was delegated ‘unconditionally’.” Accordingly, the Court held that the respondent wife “put herself in the husband’s place” and therefore had the same authority to withdraw the notice before the expiration of the statutory period.

The petitioner attempted to argue that the custody proceedings in New York reflected bad faith intent. The Court rejected the application, emphasizing that foreign litigation had no bearing on the legality of the revocation under Pakistani law. She approved the High Court’s approach, emphasizing that the only decisive question was whether the withdrawal took place within ninety days.

Read also: The Afghan regime poses a threat to the region and the world (DG ISPR)

The Supreme Court also upheld a second impugned order dated January 3, 2024, which related to another notice issued by the petitioner. The bench found that the President acted properly in accordance with existing rules, including SRO 1086(K)/61, which vests jurisdiction in Pakistan’s diplomatic missions when a party resides abroad.

Addressing the legislative scheme, the Court cautioned against interpretations that would dilute Article 8, noting that such interpretations “would defeat the purpose of Article 8, which is to recognize by law the delegation of the right to divorce to a wife and to impose on that right the same conditions as on the husband’s right to divorce under Article 7.”

Concluding the case, the bench ruled that there was “no legal infirmity” in the High Court’s judgment and dismissed the petition after converting it into an appeal.