SC rules marriage can be dissolved on shiqaq grounds even if cruelty is not proved

SC rules marriage can be dissolved on shiqaq grounds even if cruelty is not proved

ISLAMABAD: A five-member bench of the Supreme Court ruled on Wednesday that a marriage can be dissolved on grounds of *shiqaq* (marital discord) under the Dissolution of Muslim Marriages Act, 1939, even where the wife has not proved cruelty. The SC shiqaq ruling, authored by Justice Shahid Waheed, answers a long-running question about what courts should do when a dissolution suit fails the statutory cruelty test but the marriage has plainly broken down.

The 15-page judgement, from a bench headed by Justice Waheed, decided two connected petitions by Zainab Bibi and Imran Naz Begum against Peshawar High Court orders. Both wives had sought dissolution on cruelty grounds with maintenance, dower and dowry claims. The family courts found cruelty unproven but dissolved the marriages through *khula* anyway, ordering the women to return their dower; the appellate court and the PHC largely upheld those decrees.

Courts erred in forcing khula, the bench held

The Supreme Court held that the family courts committed an error when they converted the petitioners’ cruelty-based claims into *khula* decrees without obtaining their clear and voluntary consent. The judgement distinguished the two routes.

*Khula*, the court explained, proceeds from a wife’s voluntary election to obtain release from the marriage and ordinarily carries financial consequences. *Shiqaq*, by contrast, arises from an objectively established condition of serious matrimonial breach and does not depend on a wife surrendering her dower as the price of her release.

“A marriage may be dissolved by a court, but neither spouse should be judicially deprived of a lawful right, nor judicially burdened with a stigma, without the foundation of law and evidence,” the judgement stated.

The dissolutions stood, but on a different basis: the court found a serious and continuing rupture with reconciliation failed, establishing *shiqaq* under verse 35 of Surah An-Nisa, so the cases fell within the residuary section 2(ix) of the 1939 Act rather than *khula*. The directions forcing the women to return or waive their dower were set aside.

The test for shiqaq

The judgement laid down what courts must find before invoking *shiqaq*. “Mere incompatibility, occasional disagreement, anger, short separation or the existence of matrimonial litigation cannot, by themselves, satisfy the test,” it said. The breach must be genuine, serious and continuing, the marriage must have ceased to function in accordance with its essential purposes, and reconciliation must have failed despite meaningful judicial effort.

“The law should neither rush towards separation nor prolong a matrimonial relationship which has ceased to serve its lawful purposes,” the bench held.

Where the evidence does not establish a matrimonial wrong to the required standard, judges should not declare it proved: a wife must not be forced to surrender dower through involuntary *khula*, nor a husband branded cruel without evidence.

What the SC shiqaq ruling means for women

The decision closes a gap that left women in a difficult spot: unable to prove cruelty, a wife risked an involuntary *khula* conversion that cost her dower. Now a court that finds a genuine, continuing rupture can dissolve the marriage on *shiqaq* grounds while preserving her financial rights under the 1939 Act. Family lawyers expect the judgement to be cited in dissolution suits nationwide.

See also our coverage of the ATC indictment of Imaan Mazari and Hadi Ali Chattha and the Supreme Court’s dismissal of Sindh’s Baldia factory fire plea.

FAQs

What is shiqaq in Pakistani family law?

*Shiqaq* is serious marital discord. The court confirmed it falls under section 2(ix) of the 1939 Act, letting judges dissolve a marriage where the rupture is genuine, serious and continuing and reconciliation has failed.

What did the court decide about dower?

It set aside the forced return or waiver of dower, ruling that dower must be decided under the 1939 Act, not surrendered as the price of release.

Does this make divorce easier?

Not automatically. Judges must find a genuine and continuing rupture, failed reconciliation despite real effort, and a marriage that can no longer fulfil its essential purposes.