Court notes purpose of khula is to protect dignity and well-being of women, not to punish husbands
The Supreme Court has held that a woman’s right to seek Khula — dissolution of marriage on grounds of incompatibility — is an “independent and inalienable right” that cannot be made conditional upon her husband’s consent or judicial discretion beyond the scope prescribed in Shariah and statutory law.
Authored by Justice Ayesha A Malik, the detailed judgment was issued in a civil petition filed by a woman challenging Peshawar High Court decisions that denied her dissolution of marriage on the basis that the husband had not granted consent and that reconciliation efforts had not been “exhausted.”
The Supreme Court set aside the Peshawar High Court’s findings, ruling that “Khula is not dependent upon the husband’s willingness to release his wife. Once a court is satisfied that the marital relationship has broken down irretrievably, the law mandates dissolution.”
Justice Malik observed that while the Family Court can encourage reconciliation, it cannot force a woman to remain in a marriage that has “lost its substance and harmony.” “Islamic jurisprudence and the Family Courts Act, 1964 recognize Khula as a legitimate mechanism for a woman to dissolve her marriage where cohabitation becomes impossible,” the judgment stated. “The consent of the husband is not a precondition for the court to exercise its jurisdiction.”
Khula as a voluntary right
The Supreme Court clarified that Khula is a voluntary process that requires the wife’s explicit consent and cannot be judicially imposed. The Court emphasized that Khula cannot replace statutory grounds for dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939 (DMMA). The Court reiterated that the Family Court must record the wife’s consent clearly before granting Khula.
The court emphasized that mental cruelty — including humiliation, intimidation, neglect, and emotional abuse — is as serious as physical harm and provides sufficient grounds for dissolution.
“Cruelty need not always manifest in physical violence,” the judgment clarified. “Psychological abuse that diminishes a woman’s self-worth or subjects her to humiliation is equally corrosive to the marital relationship.”
The ruling further clarified that once the court finds that the wife’s aversion to the marriage is genuine and irreconcilable, “It is the duty of the court to grant dissolution to prevent further injustice.”
Cruelty and its forms
The Court emphasized that emotional and psychological abuse, such as humiliation and neglect, are as harmful as physical violence and can serve as valid grounds for dissolution. The Court made it clear that psychological abuse, which impacts the wife’s self-worth, is just as destructive to the marriage as any physical violence.
The bench held that a woman’s expression of Karahat (aversion) is a sufficient basis to invoke Khula, and that compelling her to continue marital ties in such a situation “violates both the letter and spirit of Islam, which upholds dignity and compassion within the marital bond.”
“The essence of marriage in Islam lies in mutual love, respect, and companionship,” Justice Malik wrote. “When these are absent, enforcing cohabitation serves neither the moral nor the legal ends of Shariah.”
The court also criticized lower courts for adopting “a patriarchal interpretation” that limited women’s agency. It noted that such reasoning “ignores the foundational Islamic principle that marriage is a civil contract between equals — not a bond of servitude.”
Patriarchal bias and gender sensitivity
In its ruling, the Supreme Court strongly criticized the patriarchal language used by the Family Court, which mischaracterized the woman as a ‘disobedient wife’ or a ‘self-deserted lady.’ The Court noted that such language perpetuates gender bias and stigmatizes women, reinforcing harmful societal stereotypes. The Court called for a shift away from these assumptions and emphasized that women’s autonomy and dignity must be respected in legal proceedings.
In reaffirming women’s constitutional and religious rights, the judgment cited Article 14 (Dignity of Man), Article 25 (Equality Before Law), and Article 35 (Protection of Family), stating that “the right to seek Khula embodies these rights by allowing women to withdraw from harmful or unviable marriages without stigma.”
The apex court held that the Family Court had correctly granted Khula under Section 10(4) of the Family Courts Act, which authorizes dissolution where reconciliation fails and the wife establishes valid grounds. The Lahore High Court’s earlier reversal of that decision, the bench ruled, was “contrary to Islamic principles and statutory mandate.”
Court’s view on second marriages
The Court reaffirmed that taking an additional wife without the first wife’s consent and without seeking permission from the Arbitration Council is a violation of Section 6 of the Muslim Family Laws Ordinance (MFLO). The Court held that this alone is sufficient to dissolve the marriage under Section 2 (ii-a) of the DMMA. The second marriage was contracted in violation of Islamic law and MFLO and justified the wife’s request for dissolution.
The Supreme Court also took strong exception to the language used by the Family Court in its reasoning, observing that it reflected “a deeply patriarchal mindset.”
“The repeated mischaracterization of the petitioner as a ‘disobedient wife’ and a ‘self-deserted lady,’ or the assumption that she ‘created such circumstances which compelled the defendant to contract a second marriage,’ shifts the discussion from cruelty towards the woman and the exercise of her autonomy to her obedience and disobedience,” the judgment said.
The judgment emphasized that the Family Court’s presumption that only an “obedient wife” was entitled to maintenance must be replaced with the legally correct position. “Maintenance is a husband’s statutory obligation during the subsistence of the marriage,” it stated.
Similarly, the finding that the petitioner “wanted to go to Ireland without the consent of the defendant” and was therefore “disobedient” was found to be a serious misinterpretation. “The Family Court failed to recognize that the petitioner’s desire to pursue her career or education abroad is not disobedience and is not to be equated with misconduct; rather, it is an exercise of her personal autonomy,” the court held.
Family court’s mistaken reasoning
The Supreme Court further dismissed the conclusion that the husband’s second marriage could not be considered cruelty because the petitioner had “created such circumstances which compelled him to contract a second marriage.” The judgment termed this view “completely absurd,” stating that “such reasoning perpetuates a patriarchal standard that excuses male misconduct by attributing blame to the wife.”
The court observed that these expressions collectively revealed “concepts that conflate patriarchal thinking with legal reasoning.” It stressed that Family Courts “must consciously move away from such language.”
“Words like ‘disobedient,’ ‘self-deserting,’ ‘mummed,’ ‘served the defendant’s family by heart,’ and ‘compelled to contract second marriage’ should be replaced,” the judgment said, as they “reinforce a moral hierarchy that measures women by servitude and compliance, in total disregard of her fundamental rights—especially to have life with dignity and to exercise her right to choice.”
The Supreme Court, therefore, restored the Family Court’s decree of dissolution, upholding the woman’s right to freedom from an unviable marriage.
