The Muslim Family Laws Ordinance, 1961

(VIII of 1961)

[2nd March, 1961]

An Ordinance to give effect to certain recommendations of the Commission on Marriage and Family Laws

Preamble: Whereas it is expedient to give effect to certain recommendations of the Commission on Marriage and Family Laws:

Now, therefore, in pursuance of the Proclamation of the seventh day of October, 1958, and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance:

1. Short title, extent, application and commencement: (1) This Ordinance may be called the Muslim Family Laws Ordinance, 1961.

(2) It extends to the whole of Pakistan, and applies to all Muslim citizens of Pakistan, wherever they may be.

(3) It shall come into force on such date as the Federal Government may, by notification in the Official Gazette, appoint in this behalf.

[Punjab Amendments:] "In Section 1, in sub-section (2), for the word "Pakistan" the words "the Punjab" shall be substituted." "For sub-section (3), the following shall be substituted: "(3) It shall come into force at once."

2. Definitions: In this Ordinance, unless there is anything repugnant in the subject or context,-- (a) "Arbitration Council" means a body consisting of the Chairman and a representative of each of the parties to a matter dealt with in this Ordinance; [Provided that where any party fails to nominate a representative within the prescribed time, the body formed without such representative shall be the Arbitration Council.]

(b) "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 any officer authorised in that behalf by any such Government, to discharge the functions of a Chairman under this Ordinance: Provided that where the Chairman of the Union Council, or he himself wishes to make an application to the Arbitration Council, or is, owing to illness or any other reason, unable to discharge the functions of Chairman, the Council shall elect one of its Muslim members as Chairman for the purposes of this Ordinance;

(c) "prescribed" means prescribed by rules made under Section 11; (d) "Union Council" means the Union Council or the Town or Union Committee constituted under the Basic Democracies Order, 1959 (P.O. No. 18 of 1959), and having in jurisdiction the matter as prescribed; (e) "Ward" means a ward within a Union or Town as defined in the aforesaid Order.

[Punjab Amendment:] For Section 2, the following shall be substituted: "2. Definitions: In this Ordinance: (a) "Arbitration Council" means a body consisting of the Chairman and representative of each of the parties to a matter under the Ordinance; and, in case any party fails to nominate a representative within the prescribed time, the body formed without such representative shall be the Arbitration Council; (b) "Chairman" means the Chairman of a Union Council, Union Administration or Municipal Committee or any officer authorized by the Government to discharge the functions of the Chairman under the Ordinance and where the Chairman is a non-Muslim or he himself wishes to make an application to the Arbitration Council, or is, owing to illness or any other reason, unable to discharge the functions of the Chairman, the Arbitration Council shall select one of its Muslim members as Chairman; (c) "Government" means Government of the Punjab; (d) "prescribed" means prescribed by rules made under this Ordinance; and (e) "Union Council" means a Union Council, Municipal Committee, Cantonment Board, a Union Administration or, in case of absence of any of these local governments in a local area, any other comparable body constituted under any law relating to the local governments or local authorities."

3. Ordinance to override other laws, etc.: (1) The provisions of this Ordinance shall have effect notwithstanding any law, custom or usage, and the registration of Muslim marriages shall take place only in accordance with those provisions.

(2) For the removal of doubt, it is hereby declared that the provisions of the Arbitration Act, 1940 (X of 1940), the Code of Civil Procedure, 1908 (Act V of 1908), and any other law regulating the procedure of Courts, shall not apply to any Arbitration Council.

4. Succession: In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.

5. Registration of marriages: (1) Every marriage solemnized under the Muslim Law shall be registered in accordance with the provisions of this Ordinance.

(2) For the purpose of registration of marriages under this Ordinance, the Union Council shall grant licences to one or more persons, to be called Nikah Registrars, but in no case shall more than one Nikah Registrar be licensed for any one Ward.

(3) Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under this Ordinance, be reported to him by the person who has solemnized such marriage.

(4) Whoever, contravenes the provision of sub-section (3) shall be punishable with simple imprisonment for a term which may extend to three months or with fine which may extend to one thousand rupees, or with both.

(5) The form of nikahnama, the registers to be maintained by Nikah Registrars, the records to be preserved by Union Councils, the manner in which marriage shall be registered and copies of nikahnama shall be supplied to the parties and the fees to be charged therefor, shall be such as may be prescribed.

(6) Any person may, on payment of the prescribed fee, if any, inspect at the office of the Union Council the record preserved under sub-section (5), or obtain a copy of any entry therein.

[Punjab Amendments:] (2) For the purpose of registration of marriages under this Ordinance, the Union Council shall grant licenses to one or more persons, to be called Nikah Registrars. (2A) The Nikah Registrar or the person who solemnizes a Nikah shall accurately fill all the columns of the Nikahnama form with specific answers of the bride or the bridegroom. (4) If a person contravenes the provision of: (i) sub-section (2A), he shall be punished to simple imprisonment for a term which may extend to one month and fine of twenty five thousand rupees; and (ii) sub-section (3), he shall be punished to simple imprisonment for a term which may extend to three months and fine of one hundred thousand rupees.

6. Polygamy: (1) No man, during the subsistence of an existing marriage shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance.

(2) An application for permission under sub-section (1) shall be submitted to the Chairman in the prescribed manner, together with the prescribed fee, and shall state the reasons for the proposed marriage, and whether the consent of the existing wife or wives has been obtained thereto.

(3) On receipt of the application under sub-section (2), the Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant, subject to such conditions, if any, as may be deemed fit, the permission applied for.

(4) In deciding the application the Arbitration Council shall record its reasons for the decision, and any party may, in the prescribed manner, within the prescribed period and on payment of the prescribed fee, prefer an application for revision to the Collector concerned and his decision shall be final and shall not be called in question in any Court.

(5) Any man who contracts another marriage without the permission of the Arbitration Council shall:-- (a) pay immediately the entire amount of the dower, whether prompt or deferred, due to the existing wife or wives, which amount if not so paid, shall be recoverable as arrears of land revenue; and (b) on conviction upon complaint be punishable with simple imprisonment which may extend to one year or with fine which may extend to five thousand rupees, or with both.

[Punjab Amendment:] (b) on conviction upon complaint be punishable with the simple imprisonment which may extend to one year and with fine of five hundred thousand rupees.

7. 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 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 earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.

(4) Within thirty days of the receipt of notice under sub-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 pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever be later, ends.

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

8. Dissolution of marriage otherwise than by talaq: 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.

9. Maintenance: (1) If any husband fails to maintain his wife adequately or where there are more wives than one, fails to maintain them equitably, the wife, or all or any of the wives, may in addition to seeking any other legal remedy available apply to the Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband.

(2) A husband or wife may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision of the certificate to the Collector concerned and his decision shall be final and shall not be called in question in any Court.

[Provided that the Commissioner of a Division may, on an application made in this behalf and for reasons to be recorded, transfer an application, for revision of the certificate from a Collector to any other Collector, or to a Director, Local Government, or to an Additional Commissioner in his Division.]

(3) Any amount payable under sub-section (1) or (2) if not paid in due time, shall be recoverable as arrears of land revenue.

[Punjab Amendment:] (1A) If a father fails to maintain his child, the mother or grandmother of the child may, in addition to seeking any other legal remedy, apply to the Chairman who shall constitute an Arbitration Council and the Arbitration Council may issue a certificate specifying the amount which shall be paid by the father as maintenance of the child.

10. Dower: Where no details about the mode of payment of dower are specified in the nikahnama, or the marriage contract, the entire amount of the dower shall be presumed to be payable on demand.

11. Power to make rules: (1) The Federal Government in respect of the Cantonment areas and the Provincial Government in respect of other areas, may make rules to carry into effect the purpose of this Ordinance.

(2) In making rules under this section, such Government may provide that a breach of any rules shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to two hundred rupees, or with both.

(3) Rules made under this section shall be published in the official Gazette, and shall thereupon have effect as if enacted in this Ordinance.

12. Amendment of the Child Marriage Restraint Act, 1929: [Omitted by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981].

13. Amendment of the Dissolution of Muslim Marriages Act, 1939: [Omitted by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981].

The West Pakistan Rules Under Muslim Family Laws Ordinance, 1961

[20th July, 1961]

Notification No. Integ. 4-5/61: In exercise of powers conferred by Section 11 of the Muslim Family Laws Ordinance 1961 (VIII of 1961), the Governor of West Pakistan is pleased to make the following rules, namely:--

PRELIMINARY

1. These rules may be called the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961.

2. In these rules unless there is anything repugnant in the subject or context: (a) "Form" means a form appended to these rules; (b) "Ordinance" means the Muslim Family Laws Ordinance, 1961 (VIII of 1961); (c) "Register" means a register of nikahnamas prescribed under rule 8; and (d) "Section" means a section of the Ordinance.

ARBITRATION COUNCIL

3. The Union Council which shall have jurisdiction in the matter for purpose of clause (d) of Section 2, shall be as follows, namely:-- (a) in the case of an application to contract another marriage under sub-section (2) of Section 6, it shall be the Union Council of the Union or Town in which the existing wife of the applicant, or where the husband has more wives than one, the wife with whom the applicant was married last, is residing at the time of his making the application; (b) in the case of notice of talaq under sub-section (1) of Section 7, it shall be the Union Council of the Union or Town in which the wife in relation to whom talaq has been pronounced was residing at the time of the pronouncement of talaq; and (c) in the case of an application for maintenance under section 9, it shall be the Union Council of the Union or Town in which the wife is residing at the time of her making the application, and where application under that section is made by more than one wife, it shall be the Union Council of the Union or Town in which the wife who makes the application first, is residing at the time of her making the application.

3-A. Where the whereabouts of the wife who is to be supplied a copy of the notice of Talaq under sub-section (1) of Section 7 of the Ordinance, are not known to the husband, or cannot, with due diligence, be ascertained by him, he may, if so permitted by the Chairman, give notice of the Talaq to the wife through her father, mother, adult brother or adult sister, or if their whereabouts are not known to the husband or cannot, with due diligence, be ascertained by him, he may, with the permission of the Chairman serve the notice of Talaq on her by publication in a newspaper, approved by the Chairman, having circulation in the locality where he last resided with the wife.

4. Where a non-Muslim has been elected as Chairman of a Union Council, the Council shall as soon as may be elected one of its Muslim members as Chairman for the purposes of the Ordinance, in the manner prescribed for the election of a Chairman of a Union Council.

5. (1) All proceedings before an Arbitration Council shall be held in camera unless the Chairman otherwise directs with the consent of all the parties. (2) The Chairman shall conduct the proceedings of an Arbitration Council as expeditiously as possible. (3) Subject to the provisions of sub-rule (4), such proceedings shall not be vitiated by reason of a vacancy in the Arbitration Council, whether on account of failure of any person to nominate a representative or otherwise. (4) Where a vacancy arises otherwise than through failure to make a nomination, the Chairman shall require a fresh nomination. (5) No party to proceedings before an Arbitration Council shall be a member of the Arbitration Council. (6) All decisions of the Arbitration Council shall be taken by majority, and where no decision can be so taken, the decision of the Chairman shall be the decision of the Arbitration Council. (7) A copy of the decision of the Arbitration Council duly attested by the Chairman, shall be furnished free of cost to each of the parties to the proceedings.

6. (1) Within seven days of receiving an application under sub-section (4) of Section 6 or under sub-section (1) of Section 9, or a notice under sub-section (1) of Section 7, the Chairman shall, by order in writing, call upon each of the parties to nominate his or her representative, and each such party shall, within seven days of receiving the order, nominate in writing a representative and deliver the nomination to the Chairman or send it to him by registered post. (2) Where a representative nominated by party is, by reason of illness or otherwise, unable to attend the meetings of the Arbitration Council, or willfully absents himself from such meeting, or has lost the confidence of the party, the party, may, with the previous permission in writing of the Chairman, revoke the nomination and make, within such time as the Chairman may allow, a fresh nomination. (3) Where fresh nomination is made under sub-rule (2), it shall not be necessary to commence the proceedings before the Arbitration Council de novo, unless the Chairman, for reasons to be recorded in writing, directs otherwise.

6-A. (1) Where it is made to appear to the Collector whether on the application of a party to the proceedings or on his own information, that the Chairman is interested in favour of a party to any proceedings before the Arbitration Council or is prejudiced against any such party, or that the Chairman is misconducting himself in any such proceedings, the Collector may, after giving notice to all the parties to the proceedings, appoint any other member of the Union Council as the Chairman for purpose of this Ordinance, and pending the passing of such orders may stay the proceedings before the Arbitration Council. (2) A Collector passing an order under this rule shall record in writing his reasons for the same.

REGISTRATION OF MARRIAGES

7. (1) Any person competent to solemnize a marriage under Muslim Law may apply to the Union Council for the grant of a licence to act as Nikah Registrar under Section 5. (2) If the Union Council, after making such inquires as it may consider necessary, is satisfied that the applicant is a fit and proper person for the grant of a licence, it may, subject to the conditions specified therein, grant a licence to him in Form I.

8. (1) The Union Council shall, on payment of such cost as may be determined by the Provincial Government, supply to every Nikah Registrar a bound register of nikahnama in Form II, and a seal bearing the inspection "The seal of the Nikah Registrar of Ward (x) (y). (2) Each register shall contain fifty leaves consecutively numbered, each leaf having a Nikahnama, in the quadruplicate, and the number of leaves shall be certified by the Chairman. (3) Notwithstanding the payment of cost under sub-rule (1), the register and the seal shall remain the property of the Union Council.

9. (1) For the registration of a marriage registered under Section 5, the Nikah Registrar shall be paid by the bridegroom or his representative a registration fee of two rupees, or when the dower exceeds two thousand rupees, a fee calculated at the rate of one rupee for every thousand or part of thousand rupees of such dower, subject to a maximum fee of twenty rupees. (2) Of the fees received under sub-rule (1) the Nikah Registrar shall retain for himself eighty per cent and shall pay the remaining twenty per cent to the Union Council.

10. (1) The Nikah Registrar shall, in the case of a marriage solemnized by him, fill in Form II, in quadruplicate, in the register, the persons, whose signatures are required in the Form, shall then sign, and the Nikah Registrar shall then affix his signature and seal thereto, and keep the original intact in the register. (2) The duplicate and triplicate of the Nikahnama filed in as aforesaid, shall be supplied to the bride and the bridegroom respectively, on payment of fifty paisa each, and the quadruplicate shall be forwarded to the Union Council. (3) If any person required by this rule to sign the register, refuses so to sign, he shall be punishable with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both.

11. (1) Where a marriage is solemnized in Pakistan by a person other than the Nikah Registrar, such person shall fill Form II, to be had loose on payment of such price as may be determined by the Provincial Government, the persons whose signatures required in the Form, shall then sign, and the person solemnizing the marriage then affix his signature to the Form and ensure delivery, as expeditiously as possible, of the same together with the registration fee to the Nikah Registrar of the Ward where the marriage is solemnized. (2) If any person required by this rule to sign the Form refuses to sign, he shall be punishable with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both.

12. (1) In the case of marriage solemnized outside Pakistan, by a person who is a citizen of Pakistan, such person shall ensure delivery of Form II, filled in accordance with the provisions of rule 11 together with the registration fee, to the Consular Officer of Pakistan in or for the country in which the marriage is solemnized, for onward transmission to the Nikah Registrar of the Ward of which the bride is a permanent resident, and in case the bride is not a citizen of Pakistan, to the Nikah Registrar of the Ward of which the bridegroom is such resident. (2) In the case of a marriage solemnized outside Pakistan by a person who is not a citizen of Pakistan, the bridegroom, and where only the bride is such citizen, the bride shall, for purposes of filling in, as far as may be, Form II, be deemed to be the person who has solemnized the marriage under sub-rule (1).

13. On receipt of Form II under rule 11 or 12, the Nikah Registrar shall proceed in the manner provided in rule 10 as if the marriage had been solemnized by him: Provided that except where the marriage has been solemnized within his jurisdiction, it shall not be necessary for the Nikah Registrar to obtain the signatures of the necessary persons.

POLYGAMY

14. In considering whether another proposed marriage is just and necessary during the continuance of an existing marriage, the Arbitration Council may, without prejudice to its general powers to consider what is just and necessary, have regard to such circumstances, as the following amongst others: Sterility, physical infirmity, physical unfitness for the conjugal relation, wilful avoidance of a decree for restitution of conjugal rights, or insanity on the part of an existing wife.

15. An application under sub-section (1) of section 6 for permission to contract another marriage during the subsistence of an existing marriage shall be in writing, shall state whether the consent of the existing wife or wives has been obtained thereto, shall contain a brief statement of the grounds on which the new marriage is alleged to be just and necessary, shall bear the signature of the applicant, and shall be accompanied by a fee of one hundred rupees.

REVISION

16. (1) Application for the revision of a decision of an Arbitration Council, under sub-section (4) of section 6, or of a certificate under sub-section (2) of section 9, shall be preferred within thirty days of the decision or of the issue of the certificate, as the case may be, and shall be accompanied by a fee of two rupees. (2) The application shall be in writing, set out the ground on which the applicant seeks to have the decision or the certificate revised, and shall bear the signature of the applicant.

17. As soon as may be after the Arbitration Council has given its decision under rule 6, the record of the proceedings before it in which such decision has been given, shall be forwarded by the Chairman to the office of the Union Council, where it shall be preserved for a period of five years from the date of the decision.

18. (1) The quadruplicate of the Nikahnama forwarded by Nikah Registrar under sub-rule (2) of rule 10 shall be preserved in the office of the Union Council until such time as the register containing the original is, on being completed deposited by the Nikah Registrar in such office. (2) The completed register so received shall be preserved permanently. (3) In the office of Union Council there shall be prepared and maintained an index of the contents of every register; and every entry in such index shall be made, so far as practicable, immediately after the Nikah Registrar has made an entry in the register. (4) The aforesaid index shall contain the name, place of residence and father's name of each party to every marriage registered within the Union or Town, as the case may be, and the dates of the marriage and registration.

19. (1) Subject to the previous payment of the fees prescribed in sub-rules (2) and (3), the index and the register shall, at all reasonable times, be open to inspection at the office of the Union Council by any person applying to inspect the same and copies of entries in the index and the register, duly signed and sealed by the Chairman, shall be given to all persons applying for such copies. (2) The fee for inspection of an index or register shall be fifty paisa. (3) The fee for a certified copy of all or any of the entries relating to a marriage shall be: (a) for those in index - Fifty paisa. (b) for those in a register - Two rupees. (4) Fees payable under this rule shall be credited to the Council.

PAYMENT OF FEES

20. Except fees payable to the Nikah Registrar, which shall be paid in cash, all fees payable under these rules shall be paid in non-judicial stamps.

COMPLAINTS

21. No Court shall take cognizance of any offence under the Ordinance or these rules, save on a complaint in writing by the Union Council stating the facts constituting the offence. [Punjab substitution of rule 21. (Notification No. S.O. X-1-1575, Vol. II-Punjab Gazette Extra., 26th November, 1976).] "21. No Court shall take cognizance of any offence under the Ordinance or these rules, save on a complaint in writing by the aggrieved party, stating the facts constituting the offence."

FORM I [Licence granted in pursuance of Section 5 (2) of the Muslim Family Laws Ordinance (VIII of 1961)]

In pursuance of sub-section (2) of Section 5 of the Muslim Family Laws Ordinance, 1961 (VIII of (1961) the Union Council, Union Committee, Town Committee of........... in the district of ........... hereby grants this ........... day of ........... 20 ........... to Mr. ........... son of ........... resident of ........... this licence, subject to the conditions hereunder specified, to be from the said date the Nikah Registrar for the following Ward/Wards: (1) ......................... (2) ......................... (3) ......................... (4) ......................... Signature of the Chairman. Seal.

CONDITIONS

1. This licence is not transferable.
2. This licence is revocable for breach of any of the provisions of the Muslim Family Laws Ordinance, 1961 (VIII of 1961).