The court notes that the purpose of khula is to protect the dignity and well-being of women, not to punish husbands
In a landmark judgment that strengthens women’s autonomy in Islamic family law, the Supreme Court has ruled 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 on her husband’s consent or judicial discretion beyond the extent prescribed by Sharia law.
Authored by Justice Ayesha A Malik, the detailed judgment was issued in a civil petition filed by a woman challenging Peshawer High Court orders denying her dissolution of marriage on the grounds that the husband had not consented and the efforts of conciliation had not been “exhausted”.
The Supreme Court set aside the Peshawer High Court’s findings, ruling that “Khula does not depend on the will of the husband to release his wife. Once a court is satisfied that the marital relationship has irretrievably broken down, the law mandates dissolution.”
Justice Malik noted that the family court, while empowered to promote reconciliation between spouses, cannot compel a woman to remain in a marriage that has “lost its substance and harmony.”
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“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 said. “The husband’s consent is not a prerequisite for the court to exercise its jurisdiction.”
The court emphasized that psychological 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 itself in physical violence,” the judgment clarified. “Psychological abuse that diminishes a woman’s self-esteem or exposes her to humiliation is equally corrosive to the marital relationship.”
The decision further clarified that once the court finds that the wife’s dislike of the marriage is genuine and irreconcilable, “it is the duty of the court to grant dissolution to prevent further injustice.”
The court held that a woman’s expression of Karahat (aversion) is a sufficient basis for invoking Khula, and that forcing her to continue conjugal ties in such a situation “violates both the letter and the spirit of Islam, which upholds dignity and compassion within the conjugal bond.”
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“The essence of marriage in Islam lies in mutual love, respect and companionship,” Justice Malik wrote. “When these are absent, enforcement of cohabitation serves neither the moral nor legal purposes of Sharia.”
The court also criticized lower courts for adopting “a patriarchal interpretation” that limited women’s agency. It noted that such reasoning “ignores the fundamental Islamic principle that marriage is a civil contract between equals – not a bond of servitude.”
In affirming women’s constitutional and religious rights, the judgment cited Article 14 (dignity of the man), Article 25 (equality before the law) and Article 35 (protection of the family), stating that “the right to seek Khula embodies these guarantees by allowing women to withdraw from harmful or unviable marriages without stigmatization.”
The Supreme Court found that the Family Court had correctly granted Khula under Section 10(4) of the Family Courts Act, which allows dissolution if conciliation fails and the wife establishes valid grounds. The Lahore High Court’s earlier reversal of this decision, the court ruled, was “contrary to Islamic principles and statutory mandate.”
The court noted that the purpose of Khula is to protect the dignity and well-being of women, not to punish husbands. “The court’s reluctance to grant Khula not only defeats the purpose of the Act but prolongs the suffering of women under duress,” the judgment observed.
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The Supreme Court also took strong exception to the language used by the Family Court in its reasoning, noting that it reflected “a deeply patriarchal mindset.”
“The repeated mischaracterization of the petitioner as a ‘disobedient wife’ and a ‘self-abandoned lady’ or the assumption that she ‘created such circumstances as compelled the respondent to enter into a second marriage’ shifts the discussion from cruelty to the woman and the exercise of her autonomy to her obedience and disobedience,” the judge said.
In the judgment, emphasis was placed on the fact that the Family Court’s presumption that only an “obedient wife” was entitled to maintenance must be replaced with the legally correct position. “Alimony is a husband’s statutory obligation during the maintenance of the marriage,” it said.
Similarly, the finding that the petitioner “wished to go to Ireland without the consent of the respondent” and was therefore “disobedient” was seriously misinterpreted. “The family court has failed to recognize that petitioner’s desire to pursue her career or education abroad is not disobedience and is not tantamount to misconduct; rather, it is an exercise of her personal autonomy,” the court ruled.
A similar rationale, the court said, was used to reject the plea of the petitioner to get back her gold jewelery since “she did not file an FIR” and therefore “was not entitled to the gold.”
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The Supreme Court further rejected the conclusion that the husband’s second marriage could not be considered cruelty because the petitioner had “created such circumstances which compelled him to enter into a second marriage.” The judgment termed this view “completely absurd” and said that “such reasoning perpetuates a patriarchal standard that excuses male wrongdoing by assigning blame to the wife.”
The court noted that these terms collectively revealed “concepts that conflate patriarchal thinking with legal reasoning.” It emphasized that family courts “must deliberately move away from such language.”
“Words like ‘disobedient’, ‘self-abandoned’, ‘mumbed’ ‘served the accused’s family by heart’ and ‘forced into 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 to exercise life – especially with her rightful choice.”
In its final order, the Supreme Court confirmed that the woman would return her dowry, which consisted of five tolas of gold jewelery and a residential plot included in the dowry agreement. The court noted that the return of dowry, unless waived by the husband, was in accordance with the principles governing Khula in Islamic jurisprudence.
The Supreme Court therefore restored the dissolution decree of the Family Court, which maintained the woman’s right to freedom from an unsustainable marriage.
