I need some legal advice on the separation of refugees and its
implications for custody. The case involves
two refugees who were married in Peshawar in approximately 1999 or 2000. The
husband is from Palestine and the wife is from Afghanistan. The couple
have 3 minor children.
The husband is
currently in jail on remand for money laundering and other economic crimes. He
has been in jail since November 2011 and it is not clear when he might be
released. The wife wants to separate from her husband and wants custody of her
children so that they can be submitted for resettlement. The husband has very
little chance of resettlement because of his criminal record and due to
problems in his refugee claim. However, the wife and her children would be
eligible. The wife has stated that the husband is extremely unlikely to agree
to a divorce or to handover the custody of their children.
Can you please
advise on the following:
- What are the
prospects divorce order being made by a Pakistani court? And how long would
that take?
- If the husband
remains in jail, can the court make an ex parte divorce order?
- What are the
prospects for custody orders made in favour of the wife? And how long would
that take?
- Any other advice?
Answer. It is a simple case of Khulah. Even if the husband is not willing to
divorce wife she can take Khulah from the family court in Pakistan.
Kindly read the grounds mentioned in section 2 of Dissolution of Muslim
Marriages Act 1939 as several of those grounds might be attracted in
this case.
As far as jurisdiction of this case is concerned it can be filed at such a place in Pakistan where the wife resides. This case will not proceed ex-parte as the husband is in jail and he will be called by the judge from the jail. Yes that might take several adjournments depending upon many factors. There are pre-trial reconciliation proceedings whenever a case of Khula is contested. If the husband and wife both give a statement that they don't want this relationship anymore then this case will end up at the pre-trial reconciliation proceedings. That means case will end up in around 2 months time that way. In other circumstances it will take around four to six months time till the time a decree for khulah is passed from the family court. As the judicial system in Pakistan is not very efficient, one should keep extra time in mind.
As far as child custody is concerned that is a separate issue. It will be contested in the guardian court. The court will easily grant interim custody to the mother in this case because the father is ineligible to maintain children. That case will take around six months in total. In other scenario do remember that a mother is eligible for custody of male minors till the age of seven years and for female minors till they reach the age of puberty. Also a female loses her right of custody when she is of immoral character or if she contracts second marriage. However courts in Pakistan give priority to the welfare of minors and in this case the welfare of minors rest with mother. So she will easily win the case from guardian court also even if its contested. Do feel free to ask me any further questions.
Best Regards,
Salman Yousaf Khan
Advocate High Court
+92-333-5339880
As far as jurisdiction of this case is concerned it can be filed at such a place in Pakistan where the wife resides. This case will not proceed ex-parte as the husband is in jail and he will be called by the judge from the jail. Yes that might take several adjournments depending upon many factors. There are pre-trial reconciliation proceedings whenever a case of Khula is contested. If the husband and wife both give a statement that they don't want this relationship anymore then this case will end up at the pre-trial reconciliation proceedings. That means case will end up in around 2 months time that way. In other circumstances it will take around four to six months time till the time a decree for khulah is passed from the family court. As the judicial system in Pakistan is not very efficient, one should keep extra time in mind.
As far as child custody is concerned that is a separate issue. It will be contested in the guardian court. The court will easily grant interim custody to the mother in this case because the father is ineligible to maintain children. That case will take around six months in total. In other scenario do remember that a mother is eligible for custody of male minors till the age of seven years and for female minors till they reach the age of puberty. Also a female loses her right of custody when she is of immoral character or if she contracts second marriage. However courts in Pakistan give priority to the welfare of minors and in this case the welfare of minors rest with mother. So she will easily win the case from guardian court also even if its contested. Do feel free to ask me any further questions.
Best Regards,
Salman Yousaf Khan
Advocate High Court
+92-333-5339880
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