ISLAMABAD: The Supreme Court has ruled that a family court cannot convert a woman’s suit for dissolution on statutory grounds into a decree of khula without her clear and voluntary consent. A five-member bench held that such a conversion can unlawfully deprive a woman of her right to dower.
What the Supreme Court khula ruling says
The bench decided two cases involving Zainab Bibi and Iram Naz Begum, converting the petitions into appeals and partly allowing them. The court stressed that a marriage may be dissolved by a court, but neither spouse should lose a lawful right without a foundation in law and evidence.
Both women had sought dissolution on the ground of cruelty, also claiming maintenance, dower and dowry articles. The family courts found cruelty unproved, but after reconciliation efforts failed, they dissolved the marriages through khula and ordered the women to return the dower. The Supreme Court held that this approach could not stand in law because neither woman had elected khula as an alternative basis for ending the marriage.
Statutory dissolution is not khula
The bench pointed to Section 2 of the Dissolution of Muslim Marriages Act, 1939: dissolution on statutory grounds, including cruelty, is distinct from khula. A statutory dissolution rests on an established matrimonial wrong or another prescribed ground, while khula is a separate right of a woman to seek release when continuing the marriage has become intolerable.
The court cited earlier judgments, including Khurshid Bibi, Saima Khan and Dr Faryal Maqsood, to hold that a suit for dissolution does not by itself amount to a suit for khula. A court cannot manufacture an election of khula on behalf of the wife simply because cruelty could not be proved.
The financial consequences drew particular emphasis. Section 5 of the 1939 Act preserves a woman’s right to dower when a marriage is dissolved under the Act. Khula, by contrast, ordinarily involves the surrender or return of the benefit received by the wife.
Shiqaq recognised as an independent ground
Rather than simply setting aside the dissolution of the two marriages, the court examined whether another legal ground existed on the evidence already available. It turned to Section 2(ix) of the 1939 Act, which permits dissolution on any other ground recognised as valid under Muslim law.
The bench held that shiqaq, meaning serious and continuing discord between spouses, can fall within this provision where its factual requirements are established and reconciliation has failed. The Council of Islamic Ideology, whose opinion the court sought, agreed that such a breach can constitute shiqaq under Muslim law.
The court cautioned that shiqaq cannot be equated with every marital disagreement. It requires a genuine, serious and continuing rupture such that the essential purposes of marriage can no longer realistically be fulfilled, coupled with failed reconciliation. Cruelty is a matrimonial wrong attributable to conduct under the 1939 Act, whereas shiqaq concerns the condition of the matrimonial relationship itself.
FAQs
What did the Supreme Court rule on converting dissolution suits into khula?
A family court cannot convert a woman’s plea for dissolution on statutory grounds into a decree of khula without her clear and voluntary consent. Such a conversion can unlawfully deprive her of her right to dower.
What is shiqaq?
Shiqaq is serious and continuing discord between spouses. The court recognised it as an independent ground for dissolution under Section 2(ix) of the 1939 Act, where reconciliation has failed and the essential purposes of marriage can no longer be fulfilled.
Why does the difference between dissolution and khula matter for dower?
Section 5 of the 1939 Act preserves a woman’s right to dower on dissolution under the Act. Khula ordinarily involves surrender or return of benefits received, so the conversion can cost a woman her dower.
Which cases did the Supreme Court decide?
The five-member bench decided two cases concerning Zainab Bibi and Iram Naz Begum. Both sought dissolution on cruelty grounds with maintenance, dower and dowry claims, but the family courts granted khula after cruelty could not be proved.
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Originally reported by Bloom Pakistan.
