The requirements of valid Talaq under Shia Laws:
A divorce must be pronounced orally in the presence of two competent witnesses and a talaq/divorce communicated in writing is not valid unless the husband is incapable of pronouncing it orally. The presence of witnesses is a condition precedent of a valid talaq/divorce according to Fiqha Jafria. When both the spouses were governed by the Shia Law, divorce must be pronounced by the husband orally and in the presence of two competent witnesses. Divorce communicated in writing is not valid under Shia Law unless the husband was incapable of pronouncing it orally.
The requirement of valid Talaq under Shia Law is that it should be pronounced in Arabic words in presence of two adult male witnesses and the wife‑‑‑When presence/attendance of wife cannot be procured, then-husband can pronounce Talaq (divorce) in specific Arabic words which are known as “Khutba Talaq “, but in presence of two male witnesses‑‑‑Such Talaq (divorce) can be reduced into writing and forwarded to the wife or the same may be intimated to her otherwise.
Judgments of Superior Courts regarding Shia Divorce / Talaq
Citation Name : 2016 YLR 15 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Syed MUHAMMAD ALI RAZA
Side Opponent : PROVINCE OF PUNJAB, through DCO Lahore
Ss. 7 & 8—West Pakistan Rules made under Muslim Family Laws Ordinance, 1961, R.3(b)—Constitution of Pakistan, Art. 199—Constitutional petition—Divorce—Shia law—Issuance of certificate for effectiveness of divorce—Scope—Shia personal law of divorce was not so strict so as to make a woman slave of the man who would always remain unable to get divorce without his permission—Wife who had been delegated the right of divorce by the husband could pronounce divorce by sending a notice in writing to the Chairman Union Council—Such notice had to be sent to the Union Council of the union where wife to whom Talaq had been pronounced was residing at the time of the pronouncement of Talaq—Notice had to be sent to the Union Council where Nikah was registered in case of divorce by the wife with delegated powers by the husband—No illegality had been committed while issuing certificate of effectiveness of divorce—Constitutional petition was dismissed in circumstances.
Citation Name : 2014 MLD 254 KARACHI-HIGH-COURT-SINDH
Side Appellant : Syed ASAD RAZA NAQVI
Side Opponent : Mst. SAIMA FATIMA
S.7—Constitution of Pakistan, Art. 199—Constitutional petition—Divorce, pronouncement—Fiqah Jafria—Parties were husband and wife inter se and dispute between them was regarding pronouncing of divorce—Grievance of husband was that divorce was not properly pronounced and executed hence was invalid—Validity—In divorce deed there was no mention that husband or authorized person recited Seegha or pronounced Talaq, orally in a set form of Arabic words to wife by her name—It was mentioned in certificate of Talaqnama that it was decided to issue Seegha of Talaq on behalf of husband but it was not mentioned therein that such decision was acted upon and followed by pronouncement of oral Talaq or recitation of Seegha/Khutba Talaq—Such certificate of Talaqnama did not say about pronouncement of Talaq in prescribed form in presence of witnesses, though names of two witnesses were mentioned therein with their signatures like attesting witnesses of Talaqnama but for its pronouncement, their evidence was not recorded in court—Though Talaqnama was followed by divorce deed but it also did not fulfil requirements of earlier document—Divorce pronounced by husband to wife was not valid Talaq or valid repudiation in accordance with requirement of Fiqah Jafria and, therefore, the same was not effective under Shia doctrine of Talaq—As valid Talaq was precondition for exercise of jurisdiction under S.7(1) of Mulsim Family Laws Ordinance, 1961, or initiating proceedings under it and as Talaq in question was invalid, therefore, wife was not liable to act upon such invalid Talaq and as such any proceedings, if initiated, on the basis of invalid Talaq would be illegal and without lawful authority and of no binding effect—Husband was at liberty to pronounce fresh Talaq to his wife keeping in view the requirements prescribed under Shia law and thereafter, wife would act in accordance with without any delay—Petition was disposed of accordingly.